MARGINAL COMMENT
By HAROLD N1COLSON
DR. MARCEL DE BAER, chief of Belgium's judicature, in collaboration with Professor Glueck of Harvard, has drafted a "ten-point plan" providing for the extradition and punishment of Axis war-criminals. Under this -plan all war-criminals are to be surrendered on demand to the Allied Nations ; crimes committed in occupied territories will be tried in the courts and under the laws of the countries in which they were committed ; crimes committed outside occupied territories will be tried by special international courts constituted for that purpose ; and existing extradition treaties "between the nations" will be amended in such a way as to prevent political criminals from finding asylum in foreign countries. Point 8 lays down that "the procedure in the international courts shall consist of the best features of the British and American criminal courts." Dr. Baer hopes that immediate steps will be taken to prepare and to co-ordinate the indictments and the procedure. Even from the juridical joint of view this plan presents considerable difficulties. It is difficult to see, for instance, how trials in which the accusers are also the judges can be made in any manner to conform to the traditions of British or American justice. Nor is it apparent by what means neutral countries, such as Sweden, Switzerland and Spain, could be persuaded so to alter existing extradition 'treaties as to surrender political refugees who have sought asylum within their borders. It will be recalled that when, under Article 227 of the Treaty of Versailles, the Allied and Associated Powers asked Holland to surrender the person of William II (offering in diplomatic language "to relieve the Netherlands Government of responsibility for his custody ") the Dutch replied that, not being a party to the Treaty, they could not hand over a political refugee without violating "their national tradition and honour." The point was not pressed, and the German Emperor remained unmolested at Doom until the day of his death.
It will be recalled also that in 1919 the Allies summoned Germany to hand over to them, for trial by military tribunals, those Germans who were specifically accused of committing acts in violation of the rules and customs of war. The mistake was made of including in the list of those accused of personal brutality the names of those whose responsibility was, to say the least, diffused. To place Marshal von Hindenburg in the same list as some cruel commandant of a prison camp was to increase German resistance and to diminish the dignity of the Allied indictment. The Germans, in their note af January 25th, 1920, declared that they would be unable to secure the arrest and delivery of the persons specified by the Allies, and a compromise was reached under which a limited number of war- criminals were to be tried by the Supreme Court at Leipzig. These trials did not take place until the summer of 1921, and of the twelve persons eventually prosecuted, only six were convicted. The plea was urged, and largely accepted, that those at the top who had given the orders had not themselves committed the outrages, whereas those subordinates who had committed the outrages were only acting under orders. That plea will certainly be urged again and, if the courts to be constituted under Monsieur de Baees scheme are in fact to be animated by British and American legal traditions, the assignment of responsibility will indeed become a delicate task. It is to be hoped that the mistake will not be repeated of confusing general responsibility with direct criminal action and that in our determination to inflict punishment we do not resort to legal fictions and thereby lower the authority of national and international law. It is to be hoped that this time a distinction will be made from the outset between those accused of definite criminal acts and those who contrived or ordered criminality. The former might well be sub- jected to ordinary criminal procedure in the countries where their crimes were committed ; the punishment of the latter (who would certainly refuse to recognise the jurisdiction of an international court such as Monsieur. de_ Baer contemplates), would be a matter for erY careful consideration.. .
It is sometimes argued that the legal procedure outlined by Monsieur de Baer will not in fact prove necessary, since, in the occupied countries at least, summary justice will be inflicted by other means. But when the collapse comes, local justice will not be adminis- tered with discrimination. The really guilty parties, the Gauleiters and the Quislings, will be the first to receive the warning and the first to escape ; it will be upon the wretched orderlies left behind in the Konunandanturs that vengeance will be wreaked. Even as Ludendorff in 1919 escaped into Sweden clad in a huge ulster and a cloth cap, so also will the Nazi leaders slip away at the last moment into neutral territory ; it will be hard to secure their extradition - without violating those principles of international law for which we are supposed to be fighting. There are other points which should be considered by those whose desire for personal retribution is passionate and strong. It may be true that it is imprudent to cook one's hare before it is caught ; but it is also true that even the most horrible hare, when captured and encaged, becomes a pitiable object unworthy of the vengeance of great victorious Powers. We can understand the hatred and terror aroused among our ancestors by Napoleon ; but there are few of us who do not regret Hudson Lowe. Since revenge, however sweet it may appear at the moment, acquires within a generation a very bitter taste.
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There is a further point which is relevant to the problem of how (when we have caught them) to deal with the Dictators. Retribution there must be, in order to convince the Axis countries that in the modern world aggressive romanticism does not pay. Actual per- petration of criminal deeds must assuredly receive condign punish- ment. But there is one thing above all that we must not do to the Dictators ; we must not render their fall as romantic as their rise. It would not be wise to perpetuate their legends. Supposing, for instance, that the Dutch had not stood upon their dignity, had in fact removed William II from his refuge at Amerongen, and had in fact handed him over-to the Allied and Associated Powers. Supposing that we, under the impulse of the "hang the Kaiser" excitement, had in fact been so impulsive as to execute that monarch after a trial which would not have been in accordance with our legal tradition and which history would have condemned as biassed and improper. Supposing we had done such things in 1919, how bitterly would we have regretted them in 1923! The Hohenzollern legend would to this day have been an active force in Germany ; and millions of Germans would have believed that their Kaiser had been martyred as a scapegoat for his country's sins. As it was, the legend of the Emperor faded rapidly from German consciousness ; it was not upon that legend that any revival of national self-assertiveness could be built ; if they thought of him at all, they thought of him as a pathetic figure, as a man who, having strutted violently upon the stage of history, deserted his army and his people when the danger came. The Hitler 'legend is more potent and more poisonous than any glamour which William II was able to achieve ; it is a legend which in any circumstances it will be difficult to enucleate ; it is a legend which, if crowned with martyrdom, may prove immortal.
* * * * I assume that Monsieur de Baer, in devising his International Tribunal, has considered these objections. They are weighty and must be borne in mind. For would not the philosopher, examining our perplexities from a standpoint detached from the anger and sorrow of the last four years, advise us that no retribution which the mind of man could devise for Hitler would be more terrible than the contemplation of his own failure? Would he not advise us to strip his legend of all its romantic and heroic attributes? Would he not recommend that the best of all ends for 'Hitler would be to drag out the years that may remaia to him in shabby and inglorious exile, observed by the tourists, and recorded by the photo- grapher, as a stout and shambling figure slinking under the plane trees at Ouchy or munching jam-puffs in a Konditorei?
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