THE ARRAIGNMENT OF THE KAISER.
ONCE again we are doing the right thing in the wrong way. At any rate that must be our verdict upon the way in which our representatives in Paris have treated the problem of the trial of William II. Our words can, we believe, be justified to the full. If the ex-Kaiser is to be tried, as we on the balance of opinion hold he ought to be, he should be tried for his greater and not for his minor misdeeds. But according to the words of the Treaty, or at any rate according to the explanations and interpretations that have been put forward in the Government Press, he is to be arraigned on an indictment limited to the violation of Belgium and Luxemburg. The ex-Emperor is thus to be tried for acts which it is very difficult to prove were contrary to any express promise on his part—to prove that they involved a personal rather than a national responsibility—and which are in their turpitude light compared with other acts for which he could have been placed on his trial. It is possible, then, that the Court might not be satisfied with the arguments of the prosecution.
i In our view, the ex-Kaiser should be tried rather for phis violation and disregard of the universally accepted usages of war in respect of humanity both on land and sea, and further for the clear and unquestionable breach of the solemn undertakings of the German Empire at the Hague in respect of the shooting of hostages, the use of poison-gas, and the bombing of open towns. In the matter of the sea nothing is clearer than the universal admission and previous usage—that ships of the Mer cantile Marine when captured at sea must never be sunk unless the capturing ship is able to take on board the crews and passengers found in the said ships and convey them to a place of safety. For example, the ' Alabama when she was absolutely full of prisoners burnt and sunk no ships which she overhauled. 'Here are examples of a specific breaking of rules of international law of which the Emperor must be held to be cognizant, and was unquestionably cognizant. As the holder of sovereign power in the German Empire he assented to the Hague Conventions, and must therefore be held to be bound by them both officially and personally.
And here we may interject a word as to the subject of responsibility, which is often misunderstood. It is urged sometimes that under the German Constitution the Chancellor, and not the Emperor, was responsible for acts of State. That, we venture to think, will be found to be a legal and Constitutional misapprehension. In the first place, responsibility, no matter what the language, the law, or the custom, must mean in the last resort responsibility to some one. There is no such thing as an isolated responsibility such as exists in the case of qualities like " honour " or " virtue." The German Chancellor when described as responsible must have been responsible either to the Reichstag, or the German Federation, or the Emperor, and in the case of Treaties and the conduct and command of the Army the responsibility was to the Emperor, for the Constitution gave special powers for dealing with Foreign Affairs to the Emperor, and still higher powers were his as Supreme War Lord.
The matter of personal responsibility is also clear. It cannot be argued in the case of the Kaiser that his responsi bility for the misdeeds of the German Army was a legal fig ment which it would be unfair to bring home .to him. The argument that he had no real control over his agents is inadmissible. We must never forget that he was not merely Commander-in-Chief of the German Army in the sense that the President of the United States is Commander in-Chief. He was something much higher. He was Supreme War Lord, and, what is more, he was supreme Commander-in-Chief in the field. He took the field with his troops, occupied General Headquarters at the front, and there received the reports of the Great General Staff. But may be still further argued in his favour that, considenntthe vast size of the field, the huge numbers engaged, and the complexity of the whole machine, he could not be expected to supervise the actions of every company officer, and that therefore his guilt is only technical. It must be admitted, of course, at once that he could not supervise the whole field of war ; but the argument is bad. He must be held to have adopted, endorsed, and therefore made his own the misdeeds of his subordinates, because not only did he make no attempt to disavow their actions and imposed no punishments, but, in spite of repeated opportunities for interfering, he permitted orders contrary to the laws and customs of war and of the Hague Conventions to be issued and to remain in force. A specific example is the shooting of hostages. He knew that the terrible crime took place, he knew that it took place by the order of Generals and other competent military authorities, he knew that it was contrary to the Hague Conventions.
He also realized what was done by the ' U '-boats and the hideous policy of " sinking without a trace." He was well aware of his obligations in regard to poisongas and the infliction of injury by aircraft upon open towns. Yet he not only made no effort to stop such horrors, but 'repeatedly rewarded those who committed those crimes. When we say he knew, we are using the language of the prosecution. Till the platter is fully investigated the ex-Emperor must of course be given the benefit of the doubt, and it must be assumed that he was not aware of what was being done, and cannot therefore be guilty of his agents' actions. It will be for the Court to decide on the evidence whether such a plea is good.
So much for the matter of personal responsibility. If it is argued that in spite of all this moral turpitude there is still no law under which he can be tried, and that his guilt, if any, has no legal reality, there is, we hold, a complete answer. We (i.e., the British Government and people) are at any rate not indulging in ex post facto action, nor manufacturing a prohibition, nor setting up a scale of punishment after inventing a new crime. In our official handbooks of military law, drawn up by the best legal authority in the country, it will be found that specific provision is made for the punishment, not necessarily of those who with their own hands commit some inhuman act or an act contrary to the Hague Conventions and the customs of civilized warfare, but of those who tolerate or allow such acts or issue orders for their committal. Here is the passage with which we are dealing. We quote from the official Manual of Military Law, compiled and published by our War Office on behalf of the British nation (1914). This book is a very carefully prepared summary of what is binding upon us and other States. The British Government as a whole, and not merely the War Office, are responsible to the nation for what appears in it. Here is our solemn official definition of War Crimes : " 442. War Crimes may be divided into four different classes :— (i. ) Violations of the recognized rules of warfare by members of the armed forces. (ii.) Illegitimate hostilities in arms committed by individuals who are not members of the armed forces. (iii.) Espionage and war treason. (iv.) Marauding. 443. The more important violations are the following :Making use of poisoned and otherwise forbidden arms and ammunition ; killing of the wounded ; refusal of qua ter; treacherous request of quarter ; maltreatment of dead bodies on the battlefield ; ill-treatment of prisoners of war ; breaking of parole by prisoners of war ; firing on undefended localities ; abuse of the flag of truce ; firing on the dag of truce ; abuse of the Red Cross flag and badge, and other violations of the Geneva Convention ; use of civilian clothing by troops to conoeal their military character during battle ; bombardment of hospitals and other privileged buildings ; improper use of privileged buildings for military purposes ; poisoning of wells and streams ; pillage and purposeless destruction ; ill-treatment of inhabitants hi ocoupied territory. It is important, however, to note that members of the armed forces who commit such violations of the recognized rules of warfare as are ordered by their Government or by their (Commander are not war criminals and cannot therefore be punished by the enemy. He mr.y punish the officials or commanders responsible for such orders if they fall into his hands, but otherwise he may only resort to the other means of obtaining redress which are dealt with in this chapter.
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449. Charges of War Crimes may be dealt with by military courts or by such courts as the belligerent concerned may determine. In every case, however, there must be a trial before punishment, and the utmost care must be taken to confine the punishment to the actual offender. 450. All War Crimes we liable to be punished by death, but a more lenient penalty may be pronounced. Corporal punish. meat is excluded, and cruelty in any form must be avoided. . • . 451. In pronouncing a• sentence of imprisonment it need not be taken into consideration whether there is a probability of the prisoner being released at the end of the war. There is no right to claim release, and it would not be in the interests of humanity to igrant such right, for otherwise belligerents would• be forced to carry out capital ,punishment in many more cases than is now usually necessary. '
It cannot, of course, be alleged for a moment that the Kaiser was not an officer in the German Army, or only an officer in a conventional sense, for, as we have shown, he was personally in the field, and that not merely as a spectator but regularly on active service. It is then on this provision that the Kaiser ought, in our opinion, to be tried, and it was on this provision that last autumn we urged his indictment. Here you have got a clear issue on matters which are not only specific enough to be tried, but where also the problem of responsibility can be most conveniently argued. It is idle to say that you would have to travel over too much ground, and that the trial might go on for years. We suggest that not all the crimes should be gone into, but only the three specific points : the shooting of hostages, which would • have to be admitted in fact, and therefore the responsibility alone would have to be proved ; the use of poison-gas ; and the breach of the usages of war in regard to the submarine campaign. If the prosecution failed to bring home responsibility on these three points, then clearly the prosecution would have to be dropped. No doubt the crimes against the civil populations of France and Belgium were still more awful, and personally we have little doubt that they too could be brought home to the Kaiser ; but we admit that the difficulty of securing the evidence would be very great, and that in such matters it would be possible for the defence to spin out the issue almost indefinitely. For example, there would be great difficulty in bringing evidence as to whether the women who were taken away from Lille were or were not badly treated, &c. The same argument would apply to the maltreatment of prisoners, and therefore we do not suggest their inclusion. Besides, we do not suppose that any specific order was ever given to illtreat prisoners or to illtreat women • but specific orders were given to shoot hostages, to manufacture and use poison-gas, and to carry out the ' U '-boat campaign against merchant shipping.
Assuredly we have said enough to justify the legal arraignment of the Kaiser. In any case, if the Kaiser's Counsel demurred to the jurisdiction of the Court, we would have them answered as Bradshaw, the President of the Court which tried Charles I., answered a similar plea on the part of the King. There was of course no specific law for trying a King, but as some one, we forget for the moment who, grimly remarked when these technicalities were urged, " they would find there was enough law left in England to try him." When the King asked for the Court's authority, Bradshaw answered on behalf of himself and his colleagues : " As to authority, they and the whole kingdom are satisfied of that, and they expect your answer." As Bradshaw put it later : " No Court can allow a criminal to question the right to try him. He must answer the charge made against him." Charles urged that he might at least be allowed to give his reasons why he did not answer. This Bradshaw properly and rightly refused, saying : " Sir, your reasons are not to be heard against the higher jurisdiction." Of course the circumstances in which the-people of a country try their own King afford no strict analogy to those connected with the trial of the Kaiser.. Still, the trial of Charles I. is well •worth consideration, and we strongly advise our readers who have access to the State Trials to read it. It is to be found well set forth in the first volume of A Selection of Cases from the State Trials, published by the Cambridge University Press in 1879 under the editorship of Mr. Willis-Bund.
One word more on the subject of ultra vires, the only substantial argument against •bringing the ex-Emperor to trial. If we are unable to substantiate the right of the nations to try violators of international right and custom, we had much better at once abandon the attempt to set up a system of International Law and to maintain the sanctity of Treaties. If we hesitate about punishing a thief, it is foolish to pass laborious statutes against larceny.
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