World War I: "the war to end all wars" and the birth of a handicapped international criminal justice system.

AuthorBassiouni, M. Cherif

"Strategy is a system of stop-gaps."

--Moltke (1)

INTRODUCTION

The words of Von Moltke, Germany's well-known general, are an apt prelude to the strategy of justice pursued by the Allies after World War I. It was, indeed, a "system of stop-gaps."

World War I, commonly referred to as the "Great War" and "the war to end all wars," took place between 1914 and 1918 and "was the first general war, involving all the Great Powers of the day, to be fought out in the modern, industrialized world." (2) The trigger for the war was an incident that occurred in the volatile Balkans (3) on June 28, 1914, in which Archduke Franz Ferdinand and his wife were assassinated by Gavrilo Princip as they rode in a car in Sarajevo. (4) The plot to assassinate the heir to the Hapsburg throne was planned by a secret Serbian nationalist organization known as the Black Hand. (5) Bosnia, which had been annexed into the Austro-Hungarian Empire in 1908, was viewed by such nationalist groups as an extension of Serbia. (6) On July 28, 1914, following a Hapsburg ultimatum and the Serbian government's refusal to allow Austro-Hungarian representatives to participate in its official investigation of the assassinations, Austria-Hungary declared war on Serbia. (7)

What began as nothing more than a local Balkan conflict, however, soon escalated into a continental one. (8) Following Russia's general mobilization on July 30, 1914, and France's refusal to declare its neutrality in the event of a Russo-German confrontation, Germany declared war on Russia and France on August 1 and August 3, respectively. (9) Then, on August 4, 1914, Great Britain declared war on Germany after the latter invaded Belgium. (10)

The Allied and Associated Powers included the major powers of the Triple Entente, namely: Russia; France; and Great Britain; as well as, Belgium; Serbia; Japan; Italy; and numerous other nations. (11) The United States did not officially enter the conflict until April 6, 1917, when it declared war on Germany and joined the Allied and Associated Powers. (12) The Central Powers' alliance comprised Austria-Hungary, Germany, the Ottoman Empire, and Bulgaria. (13) In total, twenty-eight countries entered the war. (14)

The number of casualties from the war was unprecedented--totaling 33,434,443. (15) The final tally of the dead was 7,781,806, in addition to 18,681,257 persons who were wounded, (16) and no one knows how many among the latter died of their injuries or related illnesses. Russian, German, and French deaths due to combat or disease were estimated at 4,696,404. (17) World War I was the first time that asphyxiating gas and mustard gas were utilized as weapons in warfare. (18) These chemical agents not only caused painful deaths and immediate illness, but permanent injuries as well. (19) In time, many of the chemical agents' victims died of their injuries or of health complications. (20) In addition, there were many allegations of atrocities being committed by combatants against civilians, including claims that women and children had been used as human shields, mutilated, and systematically executed. (21)

After four years of brutal trench warfare characterized by the Napoleonic-era strategy of massive frontal attacks, (22) which caused so many senseless casualties, the war finally ended on November 11, 1918, when a German delegation, led by Secretary of State Matthias Erzberger, signed the armistice agreement on behalf of Germany in an isolated railway car located in the Compiegne Forest near Paris. (23) Unfortunately, rather than promoting lasting European stability, the harsh terms of the armistice (24) and the Carthaginian peace dictated by the Allies at Versailles sowed the seeds that brought about the Second World War two decades later. (25) Thus, the "war to end all wars" was a prelude to another war whose consequences were even more devastating than the first one.

The Treaty of Versailles forced upon Germany draconian reparation measures. For example, the treaty required Germany to cede to the Allies all of its merchant ships over 1,600 tons, plus one-quarter of its fishing fleet; (26) to deliver huge quantities of coal to numerous Allied nations, as well as Benzol, coal tar, and ammonium sulfate to France; (27) and, despite the existence of famine conditions in Germany, to provide the Allies with a substantial portion of its remaining livestock. (28) In addition, in April 1921, the Reparation Commission set the total amount of damage on which reparations were due at 132 billion gold marks. (29) In the assessment of Lenin, who was certainly no friend to Germany: "A peace of usurers and executioners has been imposed on Germany. This country has been plundered and dismembered.... All its means of survival were taken away. This is an incredible bandits' peace." (30)

Reparations and collective sanctions are fundamentally unfair. They punish not only the innocent of the time, but also generations of innocents to come. Such injustice breeds the call for revenge and can always be counted on to bring about renewed conflict. Indeed, injustice is never conducive to peace. The economic benefits that accrued to the Allies as a result of the Versailles Treaty produced dire economic conditions in Germany and fed the hungry the desire for redress. This led to the formation of the German National Socialist Labor Party, a labor-oriented movement dedicated to combating the indignities forced upon Germany by the treaty. (31) It was that party under Hitler's leadership that brought about World War II and all its related tragedies, the worst of which was the Jewish Holocaust. (32)

The Allies needed to personify the cause of this brutal and humanly costly war to satisfy the masses' desire for revenge or justice, as the case may be. The German Kaiser was easily identifiable as such a figure and was to be tried; (33) however, because of the blood relations between the German and English monarchies, England's desire to prosecute the Kaiser, even though professed, remains suspect. The government of the Kingdom of the Netherlands, whose royal family was also related to the Kaiser, gave him refuge after he abdicated. (34) The Allies' public opinion also demanded war crimes trials of the defeated Germans. But the Allied governments' will to do so dissolved between 1919-1922 and the desire to "let bygones be bygones," accompanied by the fear of internal revolution due to fierce German opposition to war crimes trials, led the Allies to acquiesce in Germany's request to conduct in 1923 only a limited number of trials before the national Supreme Court at Leipzig. (35) The experience was disastrous.

Lastly, Allied attempts to prosecute Turkish officials for the Armenian massacres committed during World War I were aborted. (36) This was due to changing political circumstances in the region, particularly after the 1917 Russian Revolution under Lenin's ruthless leadership and the establishment of what the Allies called the Bolshevik Regime. This led the Allies to assuage the new Turkish government and to avoid causing it embarrassment through prosecutions for crimes against the Armenians, especially in light of Turkish claims that the Armenians had sided with the "Bolsheviks" during the War.

PRELUDE TO PARIS

The Paris Peace Conference held its first plenary session on January 18, 1919. (37) The purpose of the Conference was to effect peaceful settlements of the disputes arising out of World War I. (38) At the Conference the British Empire, France, Italy, Japan, and the United States had five delegates each. (39) Belgium, Brazil, and Serbia had three delegates apiece. (40) Australia, Canada, China, the Czecho-Slovak Republic, Greece, India, the Kingdom of the Hedjaz, Poland, Portugal, Romania, and South Africa were each allotted two delegates. (41) The countries of Cuba, Guatemala, Haiti, Honduras, Liberia, Montenegro, New Zealand, Nicaragua, Panama, and Siam each had one delegate. (42) The Conference officially ended on January 21, 1920. (43) Numerous treaties were negotiated as a result of the efforts of the Paris Peace Conference, (44) the most influential being the Treaty of Versailles with Germany. However, before examining the negotiations that took place at the Paris Peace Conference in connection with war crimes prosecutions, it is instructive to briefly describe the fervent political climate in which such deliberations took place.

At the end of World War I, there was a great outcry from the Entente, and especially from Great Britain, for the trial of Wilhelm II of Hohenzollern, Emperor of Germany. (45) The factors that contributed to this demand to indict the Kaiser included the general public's aversion to the horrors of a protracted war, the success of newly developed wartime propaganda techniques, (46) and the desire of Allied politicians to advance their public standing by acting on their wartime pledges to bring to trial the Germans responsible for the war and those who committed war crimes. (47) This led American Secretary of State Robert Lansing, who served as chairman of the Commission on the Responsibility of the Authors of War and on Enforcement of Penalties established on January 25, 1919, during the Paris Peace Conference, to argue that the Europeans' plan to place the Kaiser on trial was nothing more than an exercise in political pandering. (48)

Nevertheless, the passion of the times pervaded deep into legal circles. For example, one author, writing in 1919 on the subject of the Kaiser's status under international law, stated: "The Germans, by their ferocious and bestial methods, have acted in a manner without precedent in the conduct of this Society of Nations for over three centuries. We are consequently entitled, in maintaining our rule of law, to act without precedent under that law...." (49) The writer then proposed, "[u]nder the extraordinary conditions of the problem" with the Kaiser, (50) to ignore the ex post facto principle nulla...

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