Introduction
In Morissette v. United States, 342 U.S. 246; 72 S. Ct. 240; 96 L. Ed. 288 (1952), Justice Robert Jackson defined responsibility in the following way. He maintained that an injury to a victim caused by individual could constitute a crime only when the injury was committed with the intent to commit a crime. Reflecting a choice made on the part of an individual between good and evil. The responsibility for the choice forms the basis for individual criminal responsibility, see: Morissette v. United States, 342 U.S. 246 at 250-251 (1952). Regardless of the underlying debates on questions related to freedom of choice on the part of the individual, the doctrine of individual criminal responsibility has existed within the various legal systems of nation-states since antiquity. Judge Liu Daqun , a member of The Mechanism for International Criminal Tribunals (the MICT), the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY), Judge Liu asserted that evidence for a theory of responsibility could be found in Wei Liao-tzu a text from the fourth century B.C.E.
All the officers-from the level of the double squad of ten up to the generals of the right and left, superiors and inferiors-are mutually responsible for each other. If someone violates an order or commits an offense, those that report it will be spared from punishment, while those who know about it but do not report it will all share the same offense (Wei Liao-tzu 2007, 264). See also: (Liu 2014, 111).
Judge Liu maintained that the five centuries from 771 B.C.E. to 221 B.C.E. comprising the Spring and Autumn period, and the subsequent Warring States period in Chinese history were characterized by numerous examples he cited as proof were the Nine Prohibitions contained in the Methods of the Ssu-ma (Liu 2014, 103-104) and (The Methods of the Ssu-ma 2007). Traditionally, as Geoffrey Robertson inferred in his foreword to the first volume of the five volume Historical Origins of International Criminal Law; criminal law has been reserved to the domestic jurisdiction of the nation-states, a position reinforced by the principle of non-intervention implicit in the 1648 Peace of Westphalia that ended the Thirty Years War, id: (Robertson 2014, xi). The principle of non-intervention in the domestic affairs of nation-states served as a constant as the Westphalian system evolved into the Concert of Europe in the aftermath of the French Revolution and the Napoleonic Wars. Mario Telò in the “The Three Historical Epochs of Multilateralism” argued that the failure of the Westphalian system and its successor the Concert of Europe occurred because of a second “thirty years war” in the form of the First and Second World Wars, id: (Telò 2014, 39-47).
Attempted Development of the Doctrine of Individual Criminal Responsibility during The Versailles-Lausanne Period 1919-1923
The origins of the doctrines of criminal responsibility as they exist in the international sphere are less than a century old. They were engendered as a reaction to the inhumanity of the First World War, a condition exacerbated by the technological developments that occurred during the war. Mindful of the evils unleashed by the First World War, the Belgian, British, French, and Italian governments that formed a part of the victorious Entente Powers desired to place the blame for starting the war on the shoulders of the defeated Quadruple Alliance alone. The triumphant Allies also sought to assign the responsibility for the various violations of the Geneva Conventions of 1864 and 1906; and The Hague Conventions of 1899 and 1907 committed during the First World War to the Central Powers alone.
The British can legitimately claim a share of the credit for developing the modern principles of individual criminal responsibility, command responsibility, and state responsibility as they relate to international criminal law. M. Cherif Bassiouni in his 2002 article World War I: "’The War to End All Wars’ and the Birth of a Handicapped International Criminal Justice System" noted that Lord Curzon, the Earl of Kedleston presented a recommendation to Prime Minister David Lloyd-George’s War Cabinet on the November 20, 1918, suggesting that the Kaiser and the other leaders of the Central Powers be publically tried for war crimes. Lord Curzon’s proposal was approved by the British War Cabinet eight days later. British Prime Minister David Lloyd-George presented the proposal to the French Prime Minister Georges Clemenceau and Italian Prime Minister Vittorio Orlando at a trilateral conference on December 1, 1918. The three leaders affirmed the idea and communicated the results of the ministerial conference to their co-belligerent, the United States of America on December 2, 1918. See: (Bassiouni, World War I: "The War to End All Wars" and the Birth of a Handicapped International Criminal Justice System 2002, 268-269); and (United States Department of State 1934, 653-654). The demands made by the European Allies were met with a sense of apprehension in the United States, id: (United States Department of State 1942, 78).
The subject of individual criminal responsibility was taken up by the Interallied Council during the preparatory meetings for the Paris Peace Conference on January 13, 1919. The subject provoked a degree of disagreement within the Council of Ten. Bassiouni citing James Willis’ 1982 volume entitled
Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War argued that the conflicting views on the subject of responsibility reflected the discord among the Allies that enveloped the Paris Peace Conference, id: (Bassiouni 2002, 251-252), see also: (United States Department of State 1943, 536). Charles G. Fenwick demonstrated that a feeling of discontent pervaded among the smaller nations including British Dominions, Latin America and the smaller European nations over the decision making process, the structure especially as it related to committee memberships, and the program in general, see: (Fenwick 1919, 206), (United States Department of State 1943, 190), and (Bassiouni 2002, 251-252). Over the objections of President Wilson, on January 23, 1919 the Council of Ten approved the draft of a resolution introduced by Prime Minister Lloyd-George that called for a commission to inquire into the following subjects:
1. The responsibility of the authors of the War;
2. The facts as to breaches of the laws and customs of war committed by the forces of the German Empire and their allies on land, on sea, and in the air during the present war;
3. The degree of responsibility for these offences attaching to particular members of the enemy forces, including members of the General Staffs, or other highly placed individuals (Emphasis Mine);
4. The Constitution and procedure of a tribunal appropriate to the trial of these offences;
5. Any other matters cognate or ancillary to the above which may arise in the course of the enquiry, and which the Commission finds it useful and relevant to take into consideration (United States Department of State 1943, 703).
The resolution established the mandate for the Commission on the Responsibility of the Authors of War and the Enforcement of Penalties. Harry M. Rhea discussed the work of the Responsibility Commission in his 2014 article, “The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties and its Contribution to International Criminal Justice After World War II.” The Responsibility Commission allocated its workload among three sub-commissions. The first sub-commission investigated alleged criminal acts. The second commission examined the issue of responsibility for the war, and whether those responsible could be subject to prosecution. The third sub-commission was tasked with exploring the subject of war crimes, and the responsibility for them. See: (Rhea 2014), (Willis 1982), (Marston 1981), and (Commission on the Responsibility of the Authors of the War and On Enforcement of Penalties 1919).
Determination of individual criminal responsibility proved a complex task because, mandates for the second and third sub-commissions overlapped to a certain degree. In his treatment Rhea observed that the debates within Commissions II and III exposed the wide gulf that existed between the American, Japanese and the European delegations. As examples of the dissonance (Rhea 2014) cited the disagreement between the American Secretary of State Robert Lansing and Sir Ernest Pollock over the scope of the Responsibility Commission’s mandate to allow for the arrest of war criminals, the proposal to try Kaiser Wilhelm II, and the creation of an international tribunal, id: (Rhea 2014, 155, 159-161). Despite the disagreements amongst its members, the Responsibility Commission delivered its conclusions to the plenary assembly of the Peace Conference in the form of the
Report Presented to the Preliminary Peace Conference on March 29, 1919.
The substance of the report drew dissent from inside and outside the Responsibility Commissions. Inside the commission the majority report drew the ire of the American and Japanese delegations. On April 4, 1919 the American deputies, Secretary of State Robert Lansing, and Dr. James Brown Scott filed a Memorandum of Reservations. The American dissent was predicated on three on three issues. First, the American delegates) argued that Wilhelm II, as the sovereign Emperor of Germany during the First World War was immune from prosecution for acts committed during his rule. Citing the case of the
Schooner Exchange v. McFaddon, 11 U.S. 116 at 143; 3 L. Ed. 287; (1812), they asserted that the sovereign of a nation is accountable only to the legislative authority of their own country, and immune from all forms of legal process, consistent with the doctrine of sovereign immunity as recognized by international law. (Commission on the Responsibility of the Authors of the War and On Enforcement of Penalties 1919, 128. 135-136).
Second, the American delegation argued that the majority was attempting to create international law
ex post facto, and to construct a tribunal competent to adjudicate cases based on this new law by attempting to criminalize violations of the laws of war and “laws of humanity”. Using the doctrine of
nullum crimen sine lege, nulla poena sine lege, they asserted the absence of a universally accepted body of law criminalizing the acts reviewed by the Responsibility Commission removed any potential for criminal responsibility and by extension any punishment, (Commission on the Responsibility of the Authors of the War and On Enforcement of Penalties 1919, 146,). Therefore, any tribunal to try cases of the nature contemplated would be an extra-judicial tribunal, (Commission on the Responsibility of the Authors of the War and On Enforcement of Penalties 1919, 146-148). In support of their position the American legation cited
United States v. Hudson & Goodwin, 11 U.S. 32; 7 Cranch 32; 3 L. Ed. 259 (1812). Matthew Lippman in his article “Towards an International Criminal Court” published in 1995 confirmed the position adopted by the Americans, (Lippmann 1995, 15-18). In response to the desire for new tribunal based on novel and untested laws, the Secretary of State, Robert Lansing, chief of the American deputies suggested that the perpetrators of war crimes could be subjected to the national military justice systems of the various countries. as had been done in the case of Henry Wirz, the commandant of Andersonville prison camp had been after the American Civil War (Commission on the Responsibility of the Authors of the War and On Enforcement of Penalties 1919, 142, 146-148).
The Japanese deputies Adachi Mineichirō and Nagaoka Harukazu also filed a dissent on April 4, 1919. Among the dissenting voices in the Responsibility Commission those of the Japanese delegation were unique for two reasons. One, the Japanese mission was the only delegation to assert that the effort to assign individual criminal responsibility to Wilhelm II was indistinguishable from victor’s justice, and by extension a clear violation of the doctrine of sovereign immunity, (Commission on the Responsibility of the Authors of the War and On Enforcement of Penalties 1919, 151-152). Two, the Japanese deputies foreshadowed the argument made by John Maynard Keynes in The Economic Consequences of the Peace that the Treaty of Versailles especially Part Seven concerning penalties and Part Eight governing reparations constituted a Carthaginian Peace that could serve as the root cause for future aggression.
A question may be raised whether it can be admitted as a principle of the law of nations that a high tribunal constituted by belligerents can, after as a war is over, try an individual belonging to the opposite side, who may be presumed guilty of a crime against the laws and customs of war. It may further be asked whether international law recognizes a penal law as applicable to those who are guilty. In any event, it seems to us important to consider the consequences which would be created in the history of international law by the prosecution for breaches of the laws and customs of war of enemy heads of state before a tribunal constituted by the opposite party. Our scruples become greater still when it is a question of indicting before a tribunal thus constituted highly placed enemies on the sole ground that they abstained from preventing, putting an end to, or repressing acts in violation of the laws and customs of war…. (Commission on the Responsibility of the Authors of the War and On Enforcement of Penalties 1919, 151-152)
After the Responsibility Commission had submitted its report to the plenary assembly of the Peace Conference, Dr. Policarpio Bonilla, the Honduran representative submitted a memorandum on May 6, 1919 that forcefully controverted the legality of imputing individual criminal responsibility on the person of Wilhelm II and subjecting him to a prosecution. Doctor Bonilla maintained that the doctrine of
nullum crimen sine lege, nulla poena sine lege, precluded the trial of Wilhelm II because, no precedent existed for doing so. He castigated the majority, questioning their motives.
If it were sought to establish a precedent, with a view to protecting the rights of humanity and render a tribute to absolute justice, a reciprocity clause should have been inserted laying on the Allied and Associated Governments the obligation of bringing to trial and punishing the offences and crimes which their nationals might have committed against the enemy in violation of the laws and customs of war or of the laws of their own country; for these cases, however few they might be should not remain altogether unpenalized, and the Allied and Associated Governments could not wish that they should go unpunished (United States Department of State 1943, 390).
The Allied Powers and Associated Governments baulked at the idea of inserting a reciprocity clause into the Treaty of Versailles because, doing so could require them to give an account of their own conduct during the war, a matter that Bassiouni implies would have been difficult because, the Allies would be forced to justify the institution of a blockade targeting civilians, a measure contrary to customary international law see: (Bassiouni 2002, 276-277).
Objections raised by the American, Japanese and Honduran delegations regarding sovereign immunity, negative criminality, and ex post facto lawmaking were summarily dismissed by the British and the French. Prime Minister Lloyd-George countered the American arguments by contending that the Americans did not want to be responsible for the development of a body of law that could potentially contravene the Constitution of the United States and other national laws by restricting the scope of sovereign immunities id: (Bassiouni 2002, 258). The United States replied that the British delegation appeared to be pandering to public opinion in Britain rather than serving the interests of the state id: (Scott 1921, 240-241). The concerns voiced by the Japanese and Honduran delegations were ignored. Evidence that Japanese influence diminished over the course of the Peace Conference can be inferred from the exclusion of Marquis Saionji Kinmochi and Count Makino Nobuaki the leaders of the Japanese legation from the meetings held by the Big Four beginning on March 27, 1919 (Fenwick 1919, 207).
Irrespective of the concerns by the minority, and despite efforts made by the Americans and Japanese to modify the language the British and French position prevailed and the substance of the Report Presented to the Preliminary Peace Conference on March 29, 1919 was incorporated into the into the five treaties negotiated by the Peace Conference at Versailles, Saint-Germain-en-Laye, Neuilly-sur-Seine, Trianon, and Sèvres between January of 1919 and August of 1920 all contained language relating to individual, command, and state responsibilities. Of the five treaties, the Treaty signed at Versailles presents features that set it apart from the four subsequent treaties. First, the opening article of part seven related to penalties, Article 227 contained the only explicit statement ascribing criminal responsibility to an individual.
Article 227
1. The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties.
2. 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.
3. 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.
4. 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 (Treaty of Peace with Germany 1919, Art. 227).
Second, in negotiations between Germany and the Allied Powers, the introductory article of part eight governing reparations, Article 231 became enmeshed in the negotiations on subject of responsibility.
Article 231
The Allied and Associated Governments affirm and Germany accepts the responsibility of Germany and her allies for causing all the loss and damage to which the Allied and Associated Governments and their nationals have been subjected as a consequence of the war imposed upon them by the aggression of Germany and her allies (Treaty of Peace with Germany 1919, Art. 231)
The linkage occurred because, the German peace commissioners viewed Article 231 that contained the “war guilt” language as an extension of the preceding chapter on penalties.
M. Cherif Bassiouni argued that British delegation forced to pander to public opinion, while cognizant that as a monarchy the government and the legal system in Great Britain were adverse, to the prospect of prosecuting a sovereign drafted Articles 227 and 231 of the Treaty of Versailles in such a way that they would be unenforceable as a matter of law. He contended that Prime Minister Lloyd-George sought to shift the responsibility for the lack of enforceability to the shoulders of the Americans, the Japanese, and the Dutch. The disinclination of the American and Japanese delegations to impute criminal responsibility to the person of the Kaiser; when considered in conjunction with the refusal of the neutral Dutch government to surrender Wilhelm II to the Allied powers for trial effectively annulled Articles 227 and 231, (Bassiouni 2002, 271-272). The idea that constitutional monarchies present in intentionally vitiated these two articles to preserve their monarchies is supported by the fact that when the Dutch government rebuffed the Allied demand to surrender the Kaiser, the Belgian government declined to host or even to participate in the prosecution of Wilhelm II, id: (United States Department of State 1942, 78-80) and (United States Department of State 1943, 482). Matthew Lippman and James W. Garner commenting on the unenforceability of these two articles of the treaty stressed that the British Government sought to realign itself with the United States and heal the gulf that developed between the two nations as a result of the disagreements over the issue of criminal responsibility, see: (Lippman 2004, 964-966), and (Garner 1920, 91-93). The result of this realignment was demonstrated in the final text of the two articles in part seven of the treaty that provided for the trial of lesser ranking war criminals before national military tribunals, Articles 228 and 229, see: (Meron, “Reflections on the Prosecution of War Crimes by the International Tribunal,” 2006, 557).
Precluded from instituting legal proceedings the Kaiser and the other sovereigns of the Central Powers, because of shifting political realities, and the inherent limitations of international law the French, Belgian, and British governments turned their attention to prosecuting alleged war criminals in accordance with the provisions of Articles 228 and 229 of the Treaty of Versailles. The Responsibility Commission initially presented the German peace commissioners with list of approximately 900 names accused of war crimes on February 3, 1920. The thirteenth and final volume of the Papers relating to the foreign relations of the United States, The Paris Peace Conference, 1919 published in 1947 summarized the complicated negotiations between the Allied Supreme Council and the German peace commissioners. The German commissioners categorically refused to permit a German sovereign to be tried before a foreign tribunal because, the doctrine of
nullum crimen sine lege, nulla poena sine lege prohibited the course of action contemplated under Article 227. Regarding the provisions of Articles 228 and 229, the German commissioners averred that of the German civil and military legal codes explicitly forbade the surrender to the enemy for trial, see: (United States Department of State 1946, 874).
Following prolonged discussions the two sides achieved a compromise. In light of the unwillingness of the Allies to dispense with war crimes trials. Under the terms of the settlement, the British, French and Belgians would submit a list of individuals that they sought to have indicted for war crimes to the Germans. The Allies agreed to let the Germans indict and try alleged war criminals on the basis of evidence collected by the Allies. At the urging of Kurt, Baron von Lersner, the German ambassador in Paris, the German Reichstag passed legislation endowing the
Reichsgericht, the German supreme court located in Leipzig with the necessary competence to try war criminals. Under the agreement, the states-parties designated the Penal Senate of the
Reichsgericht as the appropriate venue for the trial of alleged war criminals. The Allies agreed to allow the Procurator of the
Reichsgericht employ his discretion to determine whether sufficient evidence existed to institute proceedings against an alleged war criminal. See: (Meron 2006, 556-557), (Bassiouni 2002, 281-283). In February of 1920 the Allies submitted a list containing approximately 900 named individuals including Field Marshals Hindenburg, Ludendorff and Crown Prince Rupperecht of Bavaria along with Grand Admiral von Tirpitz.
On February 3, 1920, pursuant to Article 228, the Allies presented the German ambassador, von Lersner, with a list of 895 persons to be surrendered as war criminals - a sharp contrast from the 20,000 originally named by the Commission. The publication of this list, which included such German military leaders as Hindenburg and Ludendorff, caused immediate outrage in Germany. The German ambassador threatened to resign, and the German government responded by warning the Allies that the surrender of such national heroes could imperil the stability of the weak Weimar Republic. This struck a particular note with the Allies, who, with good reason, were already fearful of a Bolshevik takeover in Germany (Bassiouni 2002, 281-282)
Theodor Meron implied that the Allied fears of exacerbating preëxisting political instability in the Weimar Republic allowed the Germans to dictate the course and scope of the trials effectively ending any concerted effort on the part of the Supreme Allied Council aimed at developing the doctrine of individual criminal responsibility and command responsibility. Forced back to the conference table the Britain, France and Belgium were required to withdraw their demands that the German High Command be prosecuted and reduce the number of indictments sought. Ultimately the British, French and Belgians submitted a list containing the names of forty-five individuals and excluded the German High Command, id: (Meron 2006, 558). Of the forty-five names submitted only twelve were brought to trial. The results verdicts and sentences documented in James F. Willis’ 1982 volume entitled Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War, and Claud Mullins’ 1921 assessment The Leipzeig trials; an account of the war criminals' trials and a study of German mentality demonstrate the risks encountered when entrusting the prosecution of war criminals to national tribunals.
Allied efforts to hold the leaders of the Ottoman Empire took the form of a series of courts martial held in accordance with the provisions of the Treaty of Sèvres that contained criminal responsibility language similar to Articles 228 through 230 of the Treaty of Versailles. Dadrian and Akçam’s 2011 volume entitled
Judgment at Istanbul: The Armenian Genocide Trials demonstrates the difficulties that Allied Powers had in attempting to reconcile the American and European jury system and the inquisitorial systems prevalent in the Near and Middle East. Unlike the later Leipzig Trials, the trials held in Istanbul in 1919-1920 resulted in a greater number of trials and convictions. Timothy McCormack argued in
Their Atrocities and Our Misdemeanours: The Reticence of States to Try Their 'Own Nationals' for International Crimes that large number of convictions and severe penalties meted out reflected an attempt by the rival governments in Constantinople and Ankara to curry favor with the Allies, (McCormack 2006, 124).
Alan Kramer’s 2006 article “The First Wave of International War Crimes Trials: Istanbul and Leipzig” ascribes the failure to foster the development of doctrines of individual and command responsibility to the rapidly changing political landscapes in Germany and Turkey that could render them vulnerable to Marxist/Leninist revolutions, (Meron 2006, 557); and (Bassiouni 1997, 19-21). This change in priorities is excellently illustrated by the fact that the treaties of Versailles, Saint-Germain-en-Laye, Neuilly-sur-Seine, Trianon, and Sèvres concluded in 1920 each contained language imputing criminal responsibility and assigning financial liability to the Central Powers for violations of the laws and customs of war. Conversely, language imputing any form of criminal responsibility was omitted from the Treaty of Lausanne concluded three years later.
At the Lausanne Conference at the end of 1922, unlike at Sèvres, the Armenian delegations were refused entry. The Allies admitted that it was impossible to force Turkey to continue the prosecutions because no one wanted to go to war against Turkey, and there was in any case no longer allied unity, with some states supporting Turkey with money and arms. The Turkish representative put forward what has since become the official standpoint: Turkey had been forced to take punitive measures of self-defence against the Armenians during the war, for which the Armenians themselves were to blame because of their subversion and their calls for foreign intervention. The conference passed a general amnesty that ended the prosecutions of the perpetrators of the genocide (Kramer 2006, 446).
Dissension among the Allies undercut their efforts to hold the Central Powers accountable came to naught. The uncompromising positions adopted by various delegations to the 1919 Peace Conference reflected their inherent unwillingness to create positive international law regarding both state responsibility and individual criminal responsibility. This failure on the part of the Allies led to the demise of these early efforts at the creation of an international criminal justice system founded upon the following principles:
1. Individual Criminal Responsibility;
2. Collective Responsibility;
3. Command Responsibility;
4. and State Responsibility.
Theodor Meron, the former President of the International Criminal Tribunal for the former Yugoslavia averred in “Reflections on the Prosecution of War Crimes by International Tribunals” that the lack of compromise that characterized the negotiations at Paris in 1919 and that remained pervasive during the subsequent Interwar years proved unsustainable in the face of a second global conflagration. Indeed, the it was the second “thirty years war” in the form of the First and Second World Wars, id: (Telò 2014, 39-47) that allowed for the development of these doctrines in the aftermath of the Second World War. Without the Second World War, the modern doctrines on responsibility would not exist.
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