1 Articles 228, 230. Identical provisions are contained in the treaty with Austria (Arts. 173, 175), but there appear to be no such stipulations in the treaty with Bulgaria.

2 The late Professor Renault, speaking before the French General Prison Society in 1915, referred to a suggestion that he had received, to the effect that in the treaty of peace a clause should be inserted requiring the delivery up of the principal offenders against the laws of war. Regarding the suggestion, M. Renault said: “I do not see how a government, even if conquered, could consent to such a clause; it would be the abdication of all its dignity; moreover, almost always, it is upon superior order that infractions of the law of nations have been committed. I have found the proposal excessive, though I understand the sentiment that inspired it. I cite it because it shows well to what point men, animated by justice and shocked by what has taken place, desire that the monstrosities of which French and Belgians have been victims should not go unpunished.” 25 Rev. Gén. de Droit Int. Pub., p. 25; also 39 Rev. Pénitentiaire, p. 425.

3 Annuaire de l’Institut, 1881–1882, p. 174.

4 The report of the Peace Conference Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties contains a catalogue of the breaches of the laws and customs of war committed by the armed and naval forces of the German Empire and their allies during the late war. The list embraces 32 categories of acts, many of which were crimes under the common law. The report is printed in English by the Carnegie Endowment for International Peace and is reprinted herein, infra, p. 95.

5 See, especially, Renault, “de 1’Application du Droit Pénal aux faits de Guerre,” 25 Rev. Gén. de Droit Int. Pub. (1918), pp. 5 ff., also his address before the Société Générate des Prisons, 39 Rev. Pénitentiaire, pp. 406 ff. (1915) ; Pic, .”Violations des Lois de la Guerre, Les Sanctions Nécessaires,” 23 Rev. Gén., pp. 261 ff. (1916); Feraud-Giraud, Recours en Raison des Dommages Causés par la Guerre; Dumas, Les Sanctions Pinoles des Crimes Allemands (1916); Meringhac, , “Sanctions des Infractions au Droit des Gens Commissés au Cours de la Guerre Européenne,” 24 Rev. Gén. (1917), pp. 10 ff.Google Scholar; Bellot, “War Crimes, Their Prevention and Punishment,” Grotius Society, Pubs. II, 46; Fauchille, L’Evacuation des Ters, occupés par l’Allemagne dans le Nord de la France; Tchernoff, Revue Politique et Parlementaire, July, 1915; Nast, , “Les Sanctions Pénales de l’Enlèvement par les Allemands du Matériel Industrielle en Territoires Français et beiges occupés par leur troupes,” 26 Rev. Gén. (1919), pp. 111 ff.Google Scholar; L. D., “Des Sanctions à établir pour la répression des Crimes commis par les Allemands en violation du Droit des Gens et des Traités Internationaux,” 44 Clunet, pp. 125 ff.; and the report of MM. Larnaude and Lapradelle entitled Examen de la Responsabilité pénale de l’Empereur Guillaume II d’Allemagne, 46 Clunet, pp. 131 ff., and the report of the Peace Conference Commission on the Responsibility of the Authors of the War. The subject was discussed at length by a group of distinguished French jurists at several sessions of the Société Générale des Prisons in 1915 and 1916. See, especially, the addresses of Garraud, Larnaude, Garcon, Renault, Clunet,’ Pillet and Weiss. English and American authorities, of course, are not lacking who have supported the doctrine of individual criminal responsibility. Both Prime Ministers Asquith and Lloyd-George publicly declared that Germans guilty of committing criminal acts against British soldiers would, in case they fell into the hands of the authorities, be tried and punished. Sir Frederick Smith, while Attorney-General of England, also advocated the trial and punishment of such persons. See, also, the remarks of Mr. E. P. Wheeler, an American lawyer, in the Proceedings of the American Society of International Law, 1917, p. 36, and of Professor T. S. Woolsey, ibid., 1915, pp. 62 ff.

6 Article cited in 25 R. G. D. I. P., p. 10. Compare, also, Garcon, 39 Revue Pénitentiaire, p. 479.

7 Dow v. Johnson, 100 U. S. 158, and Friedland v. Williams, 131 U. S. 416.

8 Compare an article by Bartlett, C. A. H. entitled “Liability for Official War Crimes” in 35 Law Quar. Rev. (1919), p. 186.Google Scholar

9 Compare Art. 71 of Lieber’s Instructions for the Government of the Armies of the United States in the Field.

10 Art. 71 declares in fact that “a prisoner of war remains answerable for his crimes committed against the captor’s army or people, committed before he was captured and for which he has not been punished by his own army.”

11 As is well known, William Wirz, commandant of the Confederate prison at Andersonville, was tried by a military commission of the United States after the close of the war, on the charge of brutal treatment of Federal prisoners. He was convicted and hanged on November 10, 1865. Rhodes, History of the United States, Vol. V, p. 506.

12 Morgan, War Book of the German General Staff, pp. 148, 162, and Carpentier, Les Lois de la Guerre Continentale (Kriegsbrauch im Landkriege), pp. 104, 121, 131.

13 The Treaty of Peace provides that the military tribunals of the country of which the injured victim is a national shall have jurisdiction. The French writers are not entirely agreed. Some hold that the criminal courts may take jurisdiction; others that it belongs to the military courts.

14 Beling, a German writer, in the Deutsche Juristen-Zeitung of February 1, 1915, however, denies that one belligerent may lawfully punish offenders belonging to the army of the adversary. Cited in 43 Clunet, p. 72.

15 Nevertheless, it may be remarked that the German International Society of Comparative Law and Political Economy maintains the exclusive jurisdiction of the military occupant. A soldier in enemy territory, it insists, is under the exclusive jurisdiction of the laws of his own country, and he cannot be punished by the courts of the opposing belligerent. Berliner Tageblatt, Feb. 10, 1915, quoted by Merignhac, article cited, p. 37.

16 Renault, article cited, p. 18; Merignhac, article cited, p. 35.

17 On Feb. 26, 1915, a German soldier was sentenced to death by a French military court at Rennes for pillage, incendiarism and assassination of a wounded soldier on the field’ of battle in Belgium. Other cases are mentioned by Merignhac, article cited, p. 35. In May, 1919, a former German captain committed suicide i while being held for trial by a French court on the charge of looting in France during the war. In November, 1919, five officers of the German army were arrested by the French military authorities in Germany and returned to France for trial on the charge of pillage and robbery in French territory during the German occupation thereof. A press dispatch from Lille, dated Nov. 20, 1919, stated that Allied officers were searching for 150 other Germans who were charged with similar offences.

18 The list of the accused contained the names of 896 persons, of whom 97 were demanded by England, 334 by Belgium and France each, 29 by Italy, 57 by Poland, and 41 by Roumania. Among the accused were Generals Hindenberg, Ludendorff and von Mackensen, Prince Rupprecht of Bavaria, the Duke of Wiirtemburg, ex-Chancellor Bethmann Hollweg, and a number of admirals, including von Tirpitz.

19 26 Rev. Gén. de Dr. Int. Pub. (1918), p. 28.

20 See the recent case of Wechsler, in which a French court took jurisdiction of an offence committed against the safety of the state by a Roumanian subject in Roumania. 44 Clunet (1917), p. 1745.

21 40 Revue Pénitentiaire (1916), p. 37.

22 M. Garraud thinks, and it would seem, properly, that M. Clunet’s reasoning cannot be defended. Ibid., p. 38.

23 24 Rev. Gen. de Droit Int. Pub. (1917), pp. 42–45.

24 Compare the article by Professor Nast, of the University of Nancy, op. cit.

25 Morgan, War book of the German General Staff, p. 170.

26 This is the conclusion of M. Nast in the article cited, p. 123.

27 Compare the opinions of Coleridge, C. J., and Denman, J., in the ease of Regina v. Keyn, 2 H. of L. Cases, 1; also, the report of Larnaude and Lapradelle in 46 Clunet, p. 139. In May, 1919, the captain of the German submarine which sank the British hospital ship Glenart Castle was arrested by the British authorities, placed in the Tower of London, and held for trial. The legal department of the government is said to have ruled that the authorities had no right to detain him during the life of the armistice, Art. 6 of which provided that in all territories evacuated by an enemy no persons should be prosecuted for offences of participation in war measures prior to the signing of the armistice, but the Admiralty took the position that they had the right to arrest such offenders at any time and hold them for trial after peace was declared. The prisoner was released, however, on the ground that he was not liable to arrest until peace had been officially declared; but there was considerable criticism of the action of the government, especially by Admiralty officials, who had done much to trace the perpetrators of German submarine atrocities. N. Y. Times, May 10 and Nov. 30, 1919.

28 Compare, e.g., Pic, 23 Rev. Gén. de Droit Int. Pub. (1916), p. 201; Renault, 25 ibid., p. 24; Merignhac, 24 ibid., p. 47, and remarks of Commandant Jullien before the Greneral Prison Society (40 Rev. Pénitentiaire, p. 110), who says the French law of contumacy never contemplated the trial in absentia of enemy soldiers charged with committing acts in violation of the laws of war.

29 Leg Nouvelles (a Dutch Journal) of April 13, 1917, published a diary of this kind. See, also, Wythe Williams in the N. Y. Times of March 28, 1917.

30 24 Rev. Gén., p. 53.

31 Ibid., p. 36.

32 39 Revue Pénitentiaire (1915), p. 427.

33 Reforme Sociale, 1915, p. 202.

34 See the early English case of Mostyn v. Fabrigas, 1 Cowper 180, decided by Lord Mansfield; and the American cases of Little v. Barreme, 2 Cranch 170, 179, and Mitchell v. Harmony, 13 How. 115. In the first mentioned American case, Chief Justice Marshall said it was the duty of a soldier to execute the lawful orders of his superiors, but that he was personally liable for the execution of an illegal order. In the case of Mitchell v. Harmony the Supreme Court repudiated the doctrine that an officer may take shelter under the plea of superior command. Referring to an order given to a military officer by his commander to commit an illegal act, the court declared that the order was no justification to the person by whom it was executed. It added: “Upon principle, independent of the weight of judicial decision, it can never be maintained that a military officer can justify himself for doing an unlawful act by producing the order of his superior.”

35 This qualification is criticized by Bellot (Grotius Society Pubs. II, p. 46) as one which “makes waste paper for the whole chapter,” and he points out that it was not in any previous edition of the Manual. It is also criticized by a writer in the Jour, of the Society of Comparative Legislation and Int. Law (Vol. 18, p. 154) as contrary to the rule of Anglo-American jurisprudence that an individual is responsible for his acts whether committed under order or not.

36 Art. 366. “Individuals of the armed forces will not be punished for these offences in case they are committed under the orders or sanction of their government or commanders. The commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall.”

37 International Law, 6th ed., p. 410.

38 Laws of War on Land, Sees. 117–118.

39 International Law and the Great War, p. 260. Compare, also, Bartlett, as English writer, in 35 Law Quar. Review, p. 191.

40 International Law, Vol. II, Sec. 253.

41 26 Rev. Gen. de Droit Int. Pub. (1919), p. 123.

42 24 Rev. Gen. de Droit Int. Pub. (1917), p. 53.

43 Some cases are cited by Merignhac in 24 Rev. Gén. (1917), p. 53.

44 Réforme Sociale, 1915, p. 203.

45 24 Rev. Gén. de Droit Int. Pub., p. 51.

46 39 Revue Pénitentiare (1915), p. 457. The commission of the French Chamber of Deputies which was charged with reporting on the bill for the ratification of the Treaty of Peace with Germany declared in its report that “among the responsibilities incurred, none is higher and more grave than that of the German Emperor. He should be judicially prosecuted for having violated the laws and customs of war. Supreme chief of the armed forces on land and sea, the ‘lord of war’ not only knew, but tolerated and encouraged, the crimes which his troops committed on land and sea. History will demand that he be held responsible for these acts.” Text of the report in Barthou, Le Traité de Paix, p. 49.

47 Their report is published in 46 Clunet (1919), pp. 131ff.

48 Printed in English by the Carnegie Endowment for International Peace, Div. of Int. Law, Pamphlet No. 32, and reprinted herein, infra, p. 95.

49 The two American members of the commission, Messrs. Lansing and Scott, dissented from certain conclusions and recommendations of the Commission. They did not consider that a judicial tribunal was a proper forum for the trial of offences of a moral nature, and they objected to the proposal of the majority to place on trial before a court of justice persons charged with having violated the “principles of humanity” or the “laws of humanity.” They also objected to the “unprecedented proposal” to put on trial before an international criminal court the heads of states not only for having directly ordered illegal acts of war, but for having abstained from preventing such acts. This would be contrary to the doctrine of immunity of sovereigns from trial and punishment by a foreign jurisdiction a; laid down by Chief Justice Marshall in the case of the Schooner Exchange v. McFadden (7 Cranch 116).

The reasoning of the American members was in accord with the somewhat technical conceptions of American criminal law and procedure, but there are doubtless American jurists who will not concur in their line of reasoning or in their conclusions.

The two Japanese members of the commission also dissented from certain of the conclusions of the majority, and expressed doubt whether, under the law of nations, offenders against the laws of war, belonging to the forces of the adversary, could be tried before a court constituted by the opposing belligerents.

50 Since the above was written the Dutch Government has informed the Allied and Associated Governments that it would not surrender the ex-Kaiser. “This Government,” it stated in its reply, “cannot admit any other duty than that imposed upon it by the laws of the Kingdom and national tradition.” According to these laws and traditions, 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.

51 See the cases of Mighell v. Sultan of Johore, 1 Q. B. 149 (1894); de Haber v. Queen of Portugal, 17 Q. B. 196 (1851); Schooner Exchange v. McFaddon, 7 Oanch 116 (1812), and Moore, Digest of International Law, Vol. II, sec. 250.

52 Hatch v. Baez, 7 Hun 596, and Underhill v. Hernandez, 26 U. S. App. 572 (1895). This matter is learnedly discussed by Quincy Wright in 19 Amer. Political Science Review (1919), p. 120.