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Retribution for War Crimes

Published online by Cambridge University Press:  12 April 2017

George A. Finch
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Type
Editorial Comment
Information
American Journal of International Law , Volume 37 , Issue 1 , January 1943 , pp. 81 - 88
Copyright
Copyright, 1943, by the American Society of International Law

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References

1 General George B. Davis, in this Journal, Vol. 1 (1907), P. 13.

2 For the text of the Hague Convention and Regulations, see this Journal, Supplement Vol. 2 (1908), p. 90 et seg. For summaries of the pertinent articles of the American, British French and German manuals of war, see Garner, J. W., “Punishment of offenders agains the laws and customs of war,” this Journal, Vol. 14 (1920), p. 70 Google Scholar.

3 This Journal, Supplement, Vol. 13 (1919), p. 250.

4 See the series of letters pro and con the trial of the Kaiser published in the London Times of July, 1919, following Prime Minister Lloyd George’s statement to the House of Commons July 3, 1919, that the Allied Powers had unanimously decided to try the Kaiser in London. (The London Times, July 4, 1919, p. 15.) Previously, suggestions that the trial of the Kaiser should take place at Washington or Paris had been made but discarded. (New York Times, July 9, 1919, p. 1.) For the diplomatic correspondence of the United States regarding the asylum of the Kaiser in Holland and his proposed extradition, see Foreign Relations of the United States, 1919, Vol. II, pp. 652–658, and ibid., Paris Peace Conference, 1919, Vol. II, pp. 76–87.

5 Debidour, , Histoire Diplomatique de L’Europe, I, 45–46 Google Scholar; De Clercq, Recueil des Traités de France, II, 400, 402; Martens, Nouveau Recueil de Traités, Tome II, 110, 605–607; Angeberg, Le Congrès de Vienne et les Traités de 1816; Metternich, Mémoires, I, 182.

6 For the judgments of the Leipzig Supreme Court, see this Journal, Vol. 16 (1922), p. 674, and for the British report thereon, see ibid., p. 628. See also the writer’s editorial in this Journal, Vol. 15 (1921), p. 440.

7 The list of the accused included Generals Hindenberg, Ludendorff and von Mackensen, Prince Rupprecht of Bavaria, the Duke of Würtemburg, ex-Chancellor Bethmann Hollweg, and a number of admirals, including von Tirpitz. “When the list was communicated to Baron von Lersner and made public in Germany it aroused such opposition that the Baron declined to deliver it to his government and announced his intention of resigning. In the face of an opposition which threatened to render impossible the execution of this provision of the treaty, the Supreme Council agreed to allow the accused to be tried by German courts. In consequence, the whole project for the trial of the Germans in the courts of the Allied and Associated Powers fell to the ground.” J. W. Garner, loc. cit., p. 77.

For a fuller account of the attempts to carry out these provisions of the Treaty of Versailles, see article entitled “Trial and Punishment of Axis War Criminals,” by Sheldon Glueck, in Free World, for November 1942, p. 138.

8 This Journal, Supplement, Vol. 13 (1919), p. 98.

9 The London Times, Oct. 8, 1942, p. 8.

10 Department of State Bulletin, Oct. 10, 1942, Vol. VII, p. 797.

11 On Oct. 25, 1941, President Roosevelt denounced the execution of innocent hostages for isolated attacks on German soldiers, and Prime Minister Churchill promptly associated himself with the President’s statement. (The London Times, Oct. 27, 1941, p. 4.) On Aug. 21, 1942, after receiving a communication from the representatives of governments in exile in London expressing the fear that crimes against their civilian populations had assumed the proportions and forms of extermination, President Roosevelt gave warning that the time will come when the invaders in both Europe and Asia “shall have to stand in courts of law in the very countries which they are now oppressing and answer for their acts.” (Department of State Bulletin, Aug. 22, 1942, Vol. VII, p. 709.)

12 Document issued by the Inter-Allied Information Committee, London, H.M. Stationery Office, 1942.

13 The London Times, Oct. 8, 1942, p. 8.

14 “In regard to extradition,” the Lord Chancellor stated, “there was not any private right of asylum recognized in international law. A fugitive criminal who managed to get over the border into some other country was not thereby entitled to claim to stay there. It was perfectly competent to the country that received him, whether there was an extradition treaty or not, if it thought its duty to the world or its conception of public policy required it to hand the criminal over.” (Ibid.)

In this connection, the reply of the Dutch Government to the Allies’ request for the surrender of the ex-Kaiser is of interest: “This Government cannot admit any other duty than that imposed upon it by the laws of the Kingdom and national tradition.” It added: “Holland has always been regarded as a refuge for the vanquished in international conflicts” and the Government could not refuse “to the former Emperor the benefit of its laws and this tradition” and thus “betray the faith of those who have confided themselves to their free institutions.” N. Y. Times Current History, Vol. XI, Pt. II, March, 1920, p. 377.

15 In the course of his statement, Molotoff said that all mankind is already aware of the names of the ringleaders and organizers of German atrocities, naming specifically Hitler, Goering, Hess, Goebbels, Himmler, Ribbentrop, Rosenberg, and that “The Soviet Government considers it necessary that any one of the leaders of fascist Germany who in the course of the war already has fallen into the hands of authorities of States fighting against Hitlerite Germany be brought to trial without delay before a special international tribunal and punished with all the severity of criminal law.” (Inter-Allied Review, Oct. 15, 1942, Vol. II, No. 10, p. 236.) On Nov. 2, 1942, the Presidium of the Supreme Soviet established an Extraordinary State Committee for the investigation of crimes committed by the invaders. For the text, see Information Bulletin issued by the Embassy of the U.S.S.R., Washington, Nov. 10, 1942, p. 3.

16 For instance, see Viscount Maugham’s statement of some of these questions in the House of Lords, Oct. 7,1942. The London Times, ibid.

17 This Journal, Supplement, Vol. 13 (1919), pp. 250–251. For the report of the Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties, upon which these articles of the treaty were based, see this Journal, Vol. 14 (1920), pp. 95–154. See, also, the memorandum prepared by the writer of this editorial while he was Assistant Technical Adviser to the American Commission to Negotiate Peace at Paris in 1919 “regarding the responsibility of the authors of the war and for the crimes committed in the war” (reproduced in Hunter Miller, My Diary at the Peace Conference at Paris, Vol. Ill, pp. 458–524), and his editorial in this Journal on “Jurisdiction of Local Courts to Try Enemy Persons for War Crimes,” Vol. 14 (1920), p. 218.

18 See the extended treatment of this subject in the recent decision of the Supreme Court of the United States in the case of the German saboteurs. This Journal, infra, p. 152.

19 This principle was repeatedly invoked by the German Supreme Court at Leipzig in excusing the acts of members of the German armed forces accused of war crimes under the Treaty of Versailles, the court in each case citing the German Military Penal Code. (This Journal, Vol. 16, pp. 674–724.) In one case the court said that “according to para. 47 of the Military Penal Code, if the execution of an order in the ordinary course of duty involves such a violation of the law as is punishable, the superior officer issuing such an order is alone responsible.” (Ibid., pp. 721–722.) See the writer’s editorial on “Superior orders and war crimes,” in this Journal, Vol. 15 (1921), p. 440.

20 The London Times, Oct. 7, 1942, p. 8.