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The Trial of the Kaiser$

William A. Schabas

Print publication date: 2018

Print ISBN-13: 9780198833857

Published to Oxford Scholarship Online: November 2018

DOI: 10.1093/oso/9780198833857.001.0001

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An International Criminal Court

An International Criminal Court

Chapter:
(p.157) 11 An International Criminal Court
Source:
The Trial of the Kaiser
Author(s):

William A. Schabas

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198833857.003.0011

Abstract and Keywords

The earliest proposals for an international criminal court emerge during the sessions of the Commission on Responsibilities. The French insist that it will offer a ‘greater stage’, something that is necessary if the former German Emperor is to be prosecuted. On this issue, too, the Americans are totally opposed. The Commission also debates whether or not the Kaiser may be able to invoke immunity as a Head of State. It also considers a notion of guilt by abstention, whereby a leader may be tried for the crimes of subordinates to the extent that he or she failed to intervene to prevent the punishable acts, a doctrine known today as ‘superior responsibility’.

Keywords:   International Criminal Court, Commission on Responsibilities, immunity, Head of State, superior responsibility

Establishment of an international criminal tribunal had been discussed since the end of the war, and even before.1 In November 1918, following the armistice, when Clemenceau and Curzon first mooted the prosecution of Wilhelm II, the French Prime Minister spoke of the need for trial before an international court.2 He was probably reflecting the views of the French experts, Larnaude and de Lapradelle, whose legal opinion argued that because the facts charged against the Kaiser were international crimes, trial before an international tribunal was required.3 They had insisted that such a prosecution required ‘a greater stage’, something that only an international tribunal could provide.4 When Sub-Commission III of the Commission on Responsibilities directed its attention to the subject of the ‘tribunal appropriate’ for trial of Wilhelm II, Ernest Pollock, the British representative, said that ‘nothing but an international tribunal of commanding power, force, and weight would have the moral position before the world to execute the justice which the entire world demands’.5

‘Constitution and Procedure of an Appropriate Tribunal’ is the title of Chapter IV of the Report of the Commission on Responsibilities. This formulation was drawn from the initial resolution of the plenary Peace Conference setting up the Commission on Responsibilities. It referred to ‘[t]he constitution and procedure of a tribunal appropriate to the trial of these offenses’.6 Yet none of the three Sub-Commissions was given formal responsibility to address the ‘appropriate tribunal’ issue. The logic for this was probably reflected in an American memorandum, where the identification (p.158) of criminal acts was viewed as a ‘preliminary’ issue. Only if the Commission concluded that crimes had been committed would the issue of the appropriate tribunal require consideration.7

The Americans were strenuously opposed to the proposed international criminal court. Although it was not circulated officially, a legal opinion prepared within the United States delegation to the Conference expressed doubts about establishing an international tribunal.8 Robert Lansing, the American Secretary of State, insisted that the only basis of jurisdiction over specific violations of the laws and customs of war was the nationality of the victim or the place where the crime was committed. Where an offence affected nationals of more than one State, Lansing said the tribunals of those countries that were concerned could unite in the form of a joint commission or joint tribunal. However, he could not see how the United States could participate in a trial concerning crimes of which its own nationals were not victims. Because the United States had only entered the war in 1917, this would affect many possible crimes that might be charged against the Kaiser. ‘As the basis of jurisdiction is the nationality of the person affected by the act, the United States would be under great embarrassment to sit upon a tribunal which considers offences committed before it entered the war’, said Lansing.9

Differences about the wisdom of creating an international tribunal surfaced during the second meeting of the Commission.10 Ernest Pollock had proposed that renewal of the armistice, which was scheduled for 17 February 1919, be made conditional on an obligation for the Germans to cooperate with prosecutions both in delivering documents and surrendering suspects. Pollock’s proposal seemed to assume the establishment of an international tribunal.11 Lansing was opposed and no action was taken. Subsequently, on a suggestion from the French delegate, Ferdinand Larnaude, Sub-Commissions II and III held their first meeting jointly. Larnaude thought it important that they coordinate their work so as to avoid the two Sub-Commissions making different recommendations about creation of an international tribunal.12 But the joint meeting was unproductive. When Sub-Commission II met alone, it promptly agreed not to pursue trial of the Kaiser for starting the war and violating the neutrality of Belgium and Luxembourg,13 thereby obviating the need for any consideration of the tribunal issue. That left Sub-Commission III as the forum for debates about the nature of the ‘tribunal appropriate’.

(p.159) Efforts at Compromise

Faced with American opposition to an international tribunal, the British and French devised a compromise in the form of a multi-national tribunal, composed of national courts from different countries.14 Reflecting this search for agreement, the initial draft Report of Sub-Commission III spoke of a ‘Grand Tribunal’ before which the most important cases might be brought. Detailed provisions on the composition and operation of the tribunal, based upon a British memorandum,15 were included in the draft Report.16 But Lansing was inflexible. The British and French withdrew their offer of some middle ground, returning to a call for a fully international court. The only element of the attempted compromise with Lansing that remained was the name. Lansing had suggested that the term ‘joint high tribunal’ replace ‘grand tribunal’. ‘We don’t want to call it “international”, which conveys the idea of a full international tribunal’, he noted. Larnaude thought ‘high tribunal’ would do; the French draft used the term ‘haut tribunal’.17

In a search for some formula acceptable to the Americans, the delegates from Greece and Italy thought that a State might participate in the international tribunal, but with the discretion to withdraw from a particular case. They hoped that this would address Lansing’s concerns about an American judge sitting in cases involving facts that arose when the country was still neutral. Inspired by these initiatives, Larnaude suggested that a State might decide not to participate in the international tribunal for acts committed prior to its entry into the war, an idea that seemed to appeal to Lansing.18 Accordingly, a clause to this effect was added to a revised draft of the Report of the Sub-Commission.

When the Report of Sub-Commission III was presented to the plenary Commission, the Americans introduced a new challenge to the proposed international tribunal. Lansing wanted to replace the entire section of the Report concerning the ‘high tribunal’ with a recommendation that the Peace Conference set up an ‘International Commission of Inquiry’. This was an idea that had also been advanced informally by the Germans as early as December 1918.19 According to Lansing’s draft amendment:

… instead of attempting to hale the ex-Kaiser before a Court of Justice for which there is no precedent in the accepted Law of Nations, an International Commission of Inquiry be instituted to investigate and to report upon the (p.160) extent of the responsibility of the ex-Kaiser from the political, legal, and moral point of view for the acts of the German Authorities civil and military in violation of the laws and customs of war committed during the course of the war from the first day of August 1914 to the 11th day of November 1918.

The Commission of Inquiry would be composed of representatives of the United States, the British Empire, France, Italy, and Japan, and of one representative of each of the other countries at war with Germany.20

There was quite predictable fury from several members of the Commission, including William Massey, who headed the British delegation in Pollock’s absence. Lansing’s principal rationale for the Commission of Inquiry was the immunity of the Kaiser from criminal prosecution. For this reason, the immunity issue was the focus of the reactions to his proposal. Larnaude, in particular, delivered a lengthy and emotional tirade against the American position.21 The following day, Lansing revised his proposal so as to allow two representatives of the ‘Great Powers’ and one each from Belgium, Greece, Portugal, Romania, and Serbia to participate in the Commission of Inquiry.22 Lansing also changed his tune about the relationship between the Commission of Inquiry and the international tribunal. Under his amended proposal, he explained, ‘a commission of this sort, with power to examine the archives of the Governments, would be an assistance to the tribunal we are going to create. This is not a substitution for the tribunal, but it is to assist the tribunal insofar as it is able to collect evidence.’23 It was only a tactical retreat for Lansing. He had shifted his energies from challenging the creation of the tribunal to the separate but related issue of the immunity from prosecution of Kaiser Wilhelm. Larnaude said that there would be no objection to the Commission of Inquiry provided it did not interfere with the high tribunal.24

There was little further discussion by the Commission on Responsibilities about the composition and activity of the tribunal. The Drafting Committee text25 was adopted with virtually no discussion.26 Aside from a few stylistic modifications, it was unchanged in the final Report of the Commission. The Commission’s Report said that creation of a ‘high tribunal’ was ‘essential’. It proposed that it be composed of three persons from each of the United States, the British Empire, France, Italy, and Japan, and one from each of Belgium, Greece, Poland, Portugal, Romania, Serbia, and Czechoslovakia. They were to be selected by each country from among members of their national courts or tribunals, civil or military. However, the important power of selecting cases for trial was reserved to a Prosecuting Commission composed of five members, one appointed from each of the major powers. The high (p.161) tribunal would take precedence over national courts, the latter being blocked from proceeding with a case that was being tried at the international level. The law to be applied by the tribunal was ‘the principles of the law of nations as they result from the usages established among civilised peoples, from the laws of humanity and from the dictates of public conscience’. These words were taken from the Martens clause in the preamble of the 1899 and 1907 Hague Conventions on the laws and customs of war. The tribunal would be empowered to sentence persons found guilty to punishments for such offences that were already prescribed at a court represented on the tribunal or the country of the convicted person. The tribunal was to determine its own procedure.27

‘To the unprecedented proposal of creating an international criminal tribunal … the American members refused to give their assent’, said the dissenting memorandum. Robert Lansing and James Brown Scott described their disagreement on the tribunal issue as ‘fundamental’ and ‘radical’. They accepted two propositions of the Commission: that a belligerent had the right to try those taken prisoner or within its power for war crimes, and that it was also entitled to set up military or civilian tribunals for this purpose. They supported reliance on ‘the machinery at hand, which had been tried and found competent, with a law and a procedure framed and therefore known in advance’, rather than ‘an international tribunal with a criminal jurisdiction for which there is no precedent, precept, practice or procedure’. To the extent that international cooperation was necessary because a punishable act affected more than one country, the Americans said that a tribunal could be formed of the countries affected by uniting the national commissions or courts.28

That the proposed international tribunal was ‘unprecedented’ was hardly a compelling argument. Woodrow Wilson’s ‘fourteen points’ had many components that might be called ‘unprecedented’. Moreover, the proponents of an international criminal court would have willingly conceded that they were breaking new ground. For them, this was, as Victor Hugo said, an idea whose time had come. Other than a reluctance to innovate, Lansing and Scott did not provide any real explanation for their opposition to the ‘high tribunal’. Their complaints were not directed to the idea of an international tribunal, but to two issues that were associated with the proposal in the Report of the Commission. ‘It was frankly stated that the purpose was to bring before this tribunal the ex-Kaiser of Germany, and that the jurisdiction of the tribunals must be broad enough to include him even if he had not directly ordered the (p.162) violations’, said the dissenting memorandum. In other words, they were opposed both to trial of the Kaiser and to ‘the doctrine of negative criminality’ in order to establish his guilt.

Immunity of the Head of State

‘[I]n the hierarchy of persons in authority there is no reason why rank, however exalted, should in any circumstances protect the holder of it from responsibility when that responsibility has been established before a properly constituted tribunal’, begins Chapter III of the Report of the Commission on Responsibilities. To dispel any doubt, the Report says that this responsibility ‘extends even to the case of Heads of States’. By way of explanation, it notes that ‘[a]n argument has been raised to the contrary based upon the alleged immunity, and in particular the alleged inviolability, of a Sovereign of a State’. According to the Commission, ‘even if, in some countries, a Sovereign is exempt from being prosecuted in a national court of his own country the position from an international point of view is quite different’.29

The argument had indeed been raised by the dissenting members of the Commission. James Brown Scott, in his account of the Paris negotiations, wrote that:

… contrary to the recommendations of the commission on responsibilities, although in thorough accord with the views of the American members of that commission, a sovereign or chief executive of a state was not to be sued for violation of the laws and customs of war. At present such a person is exempt under international law—the law made or consented to by all nations. He is immune from suit in any court, national or international … In the future the sovereign or chief executive may, by agreement of the nations, be triable for crime or offense by an international tribunal. It cannot be done now.30

The issue of sovereign immunity was addressed by both the French and the British legal experts in the opinions prepared in late 1918. The French legal experts, Larnaude and de Lapradelle, understood that immunity barred a prosecution of Kaiser Wilhelm before the courts of a foreign country. For this reason, they emphasised the importance of establishing an international tribunal.31 The British Committee of Inquiry took a more extreme view, concluding that ‘no modern usage establishing such immunity appears to exist’.32 (p.163) The British memorandum of 13 February 1919, which was largely based upon the work of the Committee of Inquiry, referred to the issue in its discussion of prosecuting the Kaiser for starting the war. It said that ‘[t]he question of the immunity of a Sovereign from the jurisdiction of a foreign Criminal Court has rarely been discussed in modern times, and never in circumstances similar to those in which it is suggested that it might be raised today’.33 The British presented this as an element of uncertainty. But their discussion concluded by stating that there was ample evidence to prosecute the Kaiser for violations of the laws and customs of war, and that this was ‘desirable’. Moreover, said the British memorandum, ‘the trial of other offenders might be seriously prejudiced if they attempted and were able to plead the superior orders of a Sovereign against whom no steps had been taken or were being taken’.34

Robert Lansing raised the immunity issue in his proposed amendment to the Report of Sub-Commission III, when he sought to replace the proposed international tribunal with a Commission of Inquiry. He based the argument for a Commission on the alleged immunity of the Kaiser: ‘In view of the official and personal influences which the ex-Kaiser possessed and exercised upon the course and conduct of the war, and in view of the immunity from suit and prosecution which a Monarch and Chief of State enjoys according to the municipal law of every civilised country and also according to the Common Law of Nations, and last because of this immunity from judicial process the ex-Kaiser escapes the condemnation which his misdeeds require …’35

William Massey, speaking on behalf of the British Empire, challenged Lansing. ‘I have heard it said that a king or Head of State is above the law’, said Massey. ‘I believe the idea arose from the fact that the king has very often to sign acts of parliament and statutes which are placed before him (by his ministers, or perhaps through his ministers) by his parliament. In those respects I believe he is above the law; the people who are responsible are the representatives of the people—they are responsible to the people—ministers are undoubtedly responsible to the people, but so far as criminal acts are concerned, and I look back upon the precedents of British history, one British king was alleged to have broken the law: he was tried by a court specially appointed for the purpose, found guilty and was executed. I am merely stating a fact, I am not expressing my own opinion as to whether he should have been executed.’36 Massey was referring to the trial of Charles I in 1649.37

(p.164) Lansing answered that ‘[w]hen a people confide to a monarch the exercise of sovereignty he acts as their agent and he is only responsible to them’. Lansing reiterated that he was speaking ‘from the purely legal point of view and not the moral point of view because from the moral point of view he is responsible to mankind, whoever he is’. Taking up Massey’s example of Charles I, Lansing said: ‘What followed? His son was restored to be monarch of England. Napoleon was practically punished—exiled; there was a restoration in his case. Louis XVI was executed—his family was restored to the throne of France. Mary, Queen of Scots, is the only case that I know of within modern times—or what might be called modern times—where a foreign sovereign has been executed, and her son was the ruler of England … I might add that the judges, if I recall it, of Charles I were executed for having performed the justice to which Mr Massey referred.’ However, Lansing’s argument was one of policy, not law.38

Larnaude’s incandescent anger radiates from the pages of the transcripts. He noted that it had already been agreed, ‘under the gentle pressure exercised by the Delegate of the United States so as to be able to reach an agreement’, not to expressly name the ex-Kaiser. The next step, it seemed, was to remove any reference at all to a Head of State. Here, Larnaude was referring to a paragraph in the Report of Sub-Commission III dealing with the authority of the proposed international tribunal. It was to try ‘all authorities, civil or military, belonging to enemy countries, however high their position may have been, without distinction of rank, including the Heads of State’.39

‘But what the French Delegation cannot accept is that the right should be abandoned: that is not possible even when questions of right should lead us to contemplate decisions which may carry with them possible penalty of death for certain people, even before such eventualities we should not give way, and should make sure that law and right should be upheld by kings.’40 The French academic argued that the Americans confused the responsibility of a sovereign to his or her own people, a matter subject to national law, and that of a sovereign with respect to other States, something governed by international law. ‘If you suppress the responsibility of the Emperor, how will it be possible to reach others, such as soldiers, officers, staff officers or even ministers? Again, everything crumbles to the ground and the whole building goes overboard. If we reach such results we should run counter to all we have said here. We should not allow the Kaiser to be a sort of scapegoat, taking the sins of the responsibility for the war upon himself and then escape. We must seek responsibility everywhere and if you exclude the responsibility of the Kaiser, (p.165) all his accomplices will be cleared and they will escape all the responsibility established, so that the position itself and public opinion which demands that punishment shall be meted out, all this will disappear.’41

The meeting ended abruptly. The debate resumed the following day. Nicolaos Politis of Greece took the lead in challenging the American position. He said that any immunity granted to Heads of State under internal law was a matter ‘of only practical expediency’. Politis explained that there were fewer obstacles when an international tribunal was established. He insisted upon an important point, one that was rarely articulated during the debates: Germany was going to agree to the trial of the Kaiser by ratifying the treaty, in effect waiving any claim to immunity. ‘[A] country cannot bring for trial before a national tribunal a foreign potentate—a foreign sovereign. But here this is another question, and we have not to go against a rule of international practice’, said Politis. ‘What we have to do is to establish an international machinery, with the consent which may have to be imposed—with the consent of the countries over which reigned the person …’ Politis then turned to the policy issues, responding to the fears expressed by Lansing that a prosecution of the Kaiser might result in restoration of the Hohenzollern dynasty. According to Politis, an international trial would serve to prevent such an eventuality. In yet another attempt to placate Lansing, Politis suggested replacing the words ‘Heads of States included’ with ‘against all persons or authorities, civil or military’.42

Larnaude was not impressed. ‘[T]here is an opinion on the part of the members of the commission that the phrase—the sentence referring to the Heads of States should go out. It may be said it is unnecessary. Very well, possibly it is. But if it is unnecessary, it won’t do any harm by allowing it to remain. It is quite unusual to insert a paragraph which appears unnecessary because it makes a position clear, and, as I said, I hold very strong opinions. I don’t want to repeat anything I said yesterday about the responsibility of the Heads of States, but I look upon it in this way: The higher a man’s position is, the more serious his responsibility, and if he commits a crime, as the head of a State, it is a more serious crime than one of his inferiors.’43

The Commission only rarely decided matters by voting, but it did so on the troublesome clause at its fifth meeting, on 14 March 1919. After considerable procedural wrangling, the phrase ‘[a]gainst all authorities or personages, civil or military, belonging to enemy countries, however high their position may have been, without distinction of rank’ was put to a vote. It was adopted by nine votes in favour, with James Brown Scott of the United States (p.166) abstaining.44 Lansing, who had gone to the train station to meet President Wilson, was not present. When Massey asked the chairman for the opportunity to justify including the phrase ‘Heads of State’, he was told that the vote had already been taken and that such a proposal was out of order. Larnaude explained, ‘expressly and firmly’, with the agreement of the chairman, that ‘it is understood by everybody here that the fact of excluding the words “Heads of States” does not at all mean, in the event of the omission, that the Heads of States should not be prosecuted. On the contrary, the wording makes it clear that the Heads of States should be brought to trial’.

‘Is that going on record?’ asked Massey. ‘Yes, it is’, answered Politis, who was in the chair. ‘Then that will satisfy me’, answered Massey.45

At its seventh meeting, the Head of State issue returned. Ernest Pollock, who had been in London for most of the week, had missed the debate on this point. He proposed no formal amendment, but he wanted instructions to be given the Drafting Committee: ‘When the “Comité de rédaction” brings up its report, we could not allow the words in paragraph “C” to remain as “authorities or persons”, or “personalities”, or whatever it is’, he said. ‘We must include these words, “including Heads of States”.’ Referring to the phrase ‘authorities or persons’ in the text adopted by the Commission, Pollock said the word ‘personalities’ was to be construed with reference to the word ‘authorities’.

‘Now, a sovereign or Head of a State is not an authority. He is the person who confers authority in the person who exercise it’, continued Pollock. ‘And to leave out these words “Heads of States” in the case where there is no difficulty in using that word is, to my mind, placing myself and my distinguished colleagues in a position in which they might be derided in all countries, and by all lawyers. And on that ground, at the right time, even if it is necessary to put in a separate memorandum to the Peace Conference, I shall ask at the appropriate time to indicate what we mean by these words, and that it does include “Heads of States”. And I beg my colleagues around the table—all of them distinguished jurists—to look around, to look into the word, and see whether or not if jurists in every country would not say to them: “What do you mean? If you meant Heads of States, you ought to have had the courage to say it. There was no need to use cryptic or difficult language on so simple a point.” And when we know what the apt phrase is, as lawyers, it behoves us to say it, because I am afraid, after having had the opportunity of looking at this matter for a week, there is danger of not doing full justice to our knowledge of law, and I shall ask my colleagues around (p.167) the table, at the appropriate time, on the report of the “Comité de rédaction”, either on a separate memorandum, to put in some document which we shall make it perfectly clear what I mean, and which shall be understood throughout the British Empire, where I am quite certain they would call upon lawyers to have the courage to express their opinions, and to write their opinions in clear and intelligible language.’46

Larnaude repeated what Pollock already knew, that when it was agreed not to use the term ‘Heads of States’, it was on the condition that the minutes record their inclusion in the provision. ‘This was consistent with ordinary rules of legislative drafting by which laws should be general and impersonal’, said Larnaude. ‘But I am nevertheless in agreement with the Solicitor-General, Sir Ernest Pollock, in admitting that it would be dangerous to rely upon the word “authority” alone.’47

The Drafting Committee restored the words ‘Heads of State’ to the controversial paragraph (c) in Chapter IV, on Pollock’s insistence.48 Chapter III of the draft Report consisted of only two short paragraphs. It included the following sentence: ‘The Commission does not admit that the Head of a State is, as such, disqualified de jure from being held responsible, if he is responsible de facto.’49 The Drafting Committee was itself divided on the matter. When the chair of the committee, Rolin-Jaequemyns, introduced the draft Report, he indicated his own discomfort with the reference to Heads of State. ‘[I]t might be better, following healthy traditions, not to declare in advance any presumption of guilt with respect to anyone, and this means removing all special reference to Heads of State and even the ex-Kaiser’, he said.50 But there was little discussion of the issue in the plenary Commission. The Japanese representative asked the chairman to clarify whether the words ‘Heads of State’ remained in the paragraph. Pollock confirmed that they did. Scialoja of Italy said he would follow the almost unanimous view of the Commission, but declared that he preferred the text of Rolin-Jaequemyns, where the reference to ‘Heads of State’ was omitted.51 The Commission insisted that the Drafting Committee make another effort.52

The Drafting Committee’s revision of Chapter III was presented to the tenth meeting of the Commission, on 27 March 1919. It had been very substantially rewritten and ‘fattened up’ as the Commission had requested. The new text focused on the Head of State issue. Lansing had left the meeting because of other responsibilities. Ernest Pollock, who could not have disagreed more with the American on this issue, replaced him in the chair. The Americans had made it clear they would never agree with the majority of the (p.168) Commission. The various concessions that had been made to Lansing in the course of the negotiations were rescinded. The final text not only retained the reference to ‘Heads of States’—it also mentioned the Kaiser by name:

In these circumstances, the Commission desires to state expressly that in the hierarchy of persons in authority, there is no reason why rank, however exalted, should in any circumstances protect the holder of it from responsibility when that responsibility has been established before a properly constituted Tribunal. This extends even to the case of Heads of States. An argument has been raised to the contrary based upon the principle of the irresponsibility of a Sovereign of a State. But this principle, where it is recognised, is one of practical expediency in municipal law, and is not fundamental. Granted, however, that a Sovereign is exempt from being prosecuted in a national Court of his own country, the position from an international point of view is quite different.

We have later on in our Report proposed the establishment of a High Tribunal composed of judges drawn from many nations, and included the possibility of the trial before that Tribunal of a former Head of a State with the consent of that State itself secured by articles ini the Treaty of Peace. If the immunity of a Sovereign is claimed to extend beyond the limits above stated, it would involve laying down the principle that the greatest outrages against the laws and customs of war and the laws of humanity, if proved against him, could in no circumstances be punished. Such a conclusion would shock the conscience of civilised mankind.

In view of the grave charges which may be preferred against—to take one case—the ex-Kaiser, the vindication of the laws and customs of war and the laws of humanity which have been violated would be incomplete if he were not brought to trial and if other offenders less highly placed were punished. Moreover the trial of the other offenders might be seriously prejudiced if they attempted and were able to plead the superior orders of a Sovereign against whom no steps had been or were being taken.

There is little doubt that the ex-Kaiser and others in high authority were cognisant of and could at least have mitigated the barbarities committed during the course of the war. A word from them would have brought about a different method in the action of their subordinates on land, at sea and in the air.

We desire to say that civil and miltiary authorities cannot be relieved from responsibility by the mere fact that a higher authority might have been convicted of the same offence. It will be for the Court to decide whether a plea of superior orders is sufficient to acquit the person charged from resopnsibility.

Conclusion

There exist weighty charges against a number of enemy individuals. For reasons on which it is unnecessary to insist it would be premature to publish their names, but these are at the disposal of the members of the Commission suggested in the second Conclusion followiing Chapter II.53

(p.169) Larnaude objected to reference to specific individuals. He said it was unnecessary to indicate that the Commission could provide names of potential suspects. ‘The conclusion should be abstract and impersonal, like the rest of Chapter III’, he said. Rolin-Jaequemyns offered an explanation, as one of the rapporteurs, but said he had no objection to the concerns of France. Rosental of Romania observed that the draft referred only to the Kaiser, and he thought it ought also to mention the former king of Bulgaria. ‘We only put in the ex-Kaiser as he is only taken as an example’, explained Pollock. ‘We might put in, you know, some Turkish authorities or the Sultan, but it is much better to take a single example than it is to go through a whole number of persons that might be included anywhere.’54

‘Negative Criminality’

There was much controversy within the Commission on Responsibilities about how to establish Kaiser Wilhelm’s liability for crimes perpetrated by German combatants. The French memorandum to the Commission described the German Army as ‘the most disciplined in the world’, claiming ‘there is only one law, the will of the Emperor’. It asked how it could be that the Emperor would not have been thoroughly informed of atrocities perpetrated by his troops. The memorandum noted that well-publicised events like the sinking of the RMS Lusitania were surely known to Wilhelm. Because similar acts continued, ‘it was by his order or at least with his consent’.55 The British memorandum said that:

Whatever view may be advanced as to the ex-Kaiser’s responsibility as author of the war, there is little room for doubt that at any time he could at least have mitigated the barbarities committed during the course of it. A word from him would have brought about a different method in the actions of his officers both on land and on sea and in the air. But he deliberately sanctioned and carried out a policy of terrorism and ruthless unrestricted warfare. He openly chose Attila as his model and inspired the spirit of this Hun into those who were under his command.56

The Commission confronted this issue as it considered paragraph (c) of Chapter IV. It is part of a list of four categories of offenders, labelled (a), (b), (c), and (d), for whom prosecution by an international tribunal is contemplated. This was the same provision that provoked disputes about Head of State immunity. In the final Report of the Commission, paragraph (c) targets persons (p.170) in authority ‘who ordered, or, with knowledge thereof and with power to intervene, abstained from preventing or taking measures to prevent, putting an end to or repressing, violations of the laws or customs of war’.57 The provision has its origins in the draft report of Sub-Commission III, where there is a four-paragraph enumeration similar to the one in the final Report of the Commission. Paragraph (c) in the draft describes the jurisdiction of the international tribunal as extending to ‘the ex-Kaiser himself, in so far as he ordered or abstained from controlling and mitigating the barbarities committed in many widely separated areas and in many countries’.58 There was no debate in the Sub-Commission about paragraph (c) of the initial draft. When a new version was prepared, the paragraph was changed and reference to the Kaiser removed: ‘Against all authorities, civil or military, however high their position may have been, without distinction of rank, including the Heads of States, who ordered, or abstained from preventing, putting an end to, or repressing, barbarities or acts of violence.’59 Larnaude later described deletion of the explicit mention of the Kaiser as a ‘compromise’.60

But the provision, even as amended, was still anathema to the Americans. In a sense, the ‘compromise’ was even worse, because in principle it extended to other Heads of State. According to Lansing, under this provision ‘the President of the United States, or the King of England might be tried for having failed to prevent certain of their soldiers from performing barbarous or atrocious acts’. He said he was not prepared to sign up to such a position. Lansing said he could agree to a text that referred to authorities ‘who ordered, or openly gave assent to barbarities or acts of violence they could have prevented’.61

‘I don’t think that the danger in which the President of the United States might find himself is one that really is an argument in which we need to dwell upon’, replied Pollock. ‘If the President of the United States had been in any way guilty or responsible for the acts which we attribute to William II, I believe the United States would be perhaps the most insistent that the President guilty with such blood upon him should be brought to trial, and the mere fact that he happened to be the President of the United States would not protect him from the execration of those persons who elected him to that high and responsible position. In other words, a criminal or a guilty person who is responsible for what happened in the course of the war, be he the President of the United States, or be he the King of England, or the King of any other country, deserves and should receive, not only from the United States, but from every other country, the condemnation which he ought to receive.’62

(p.171) Pollock attempted to explain the importance of the words ‘abstaining from preventing’. He said that ‘a person in high authority, or a sovereign of a State might himself be shocked by suddenly finding that outrages and excesses had been committed by persons—by soldiers or sailors who wore his uniform. But once they have been brought to his knowledge, and once he is apprised of the fact that his uniform has been disgraced, the responsibility then lies upon him. If he does not take measures within his power of preventing further and future excesses and outrages, and therefore, if you are trying, we will say the ex-Kaiser, you may put him in what we call in England two charges, or two counts; the one that he allowed; the other that he did not prevent. For the first you would have to show that he either ordered or assented to an order being given under which excesses were first authorised; and under the second you would have to show that if he had knowledge of what had been done, and he took no steps, such as were within his power, of preventing subsequent similar acts being repeated.’63

Rolin-Jaequemyns of Belgium warned that incriminating acts of ‘mere abstention’ might lead to high officials, such as governors and generals, taking shelter successfully behind the Kaiser, contending ‘that he is the only guilty man, because he exercised his passive authority, and did not prevent those acts … On the other hand, if we don’t include this passive charge, as it were, in the first part, the fact of including directly and explicitly the Heads of States offers less inconvenience. If we leave out the passive abstention, the fact of mentioning explicitly Heads of States does not open—does not offer as many inconveniences.’64 Other members of the Sub-Commission did not see the same danger or difficulty.

Lansing said there was no point in debating the point further. ‘My friend, the Solicitor General, states that he cannot sign a report with this item “C” left out. I cannot sign a report for the United States with item “C” reading as it does. I would therefore suggest as the only possible solution, to make this report as it is drafted, and with a reservation on the part of the United States submitting an amended article.’65 On Lansing’s suggestion, the final words in the sentence, ‘barbarities or acts of violence’, were changed to ‘violations of the laws and customs of war’ in order to respect the Commission’s terms of reference.66

When the Report of Sub-Commission III was discussed in the plenary Commission, Lansing’s hesitations about liability for abstention met with supporters. Adachi of Japan had told the Sub-Commission he initially had been in full accord with the clause, but that he would like to reserve his (p.172) assent in light of Lansing’s ‘weighty arguments’.67 When the Commission met, Adachi endorsed the American position, as did Rolin-Jaequemyns of Belgium.68 Politis proposed an amendment to paragraph (c) removing liability by abstention, ‘to meet the wishes of the representative of Belgium’, and confining liability of authorities to acts that they had ordered.69 Massey valiantly tried to argue for retaining the reference to abstention, invoking English law to support the principle that ‘a master is responsible for the acts of his servant. According to that rule, an officer is responsible for the acts of his servant, if he does nothing to prevent the commission of crimes, if he has knowledge of it, if he knows that atrocities are being committed.’70 The reference by the New Zealand farmer was well intended but ill-informed, and the lawyers in the room knew it. The vicarious liability of the master only applies to civil claims, not criminal prosecution. The Commission took a vote on paragraph (c) in its consideration of the report of Sub-Commission II. An attempt to remove the phrase about liability by abstention was rejected and the text in the Sub-Commission’s Report, with some minor modifications, was adopted by eight votes in favour, with James Brown Scott voting against and Mineichirō Adachi abstaining.71

The draft Report made no changes to the text. It now spoke of ‘authorities, civil or military … who ordered, or abstained from preventing, putting an end to or repressing, violations of the laws or customs of war, provided that no abstention shall constitute a defence for the actual perpetrators’.72 Pollock asked Lansing if he might find it acceptable were the words ‘with knowledge thereof’ or ‘with knowledge thereof, and power to intervene’ inserted before ‘who ordered’. This expressed what was only implied in the text as adopted by Sub-Commission III, said Pollock. ‘I had no idea of convicting a person who had no knowledge, or who had no power to intervene, and if we put in those few words, I feel sure that the proposition may be adopted.’ Larnaude observed that the new clause, ‘if it is inserted, does away with what has been called passive or negative complicity’. Lansing, who was in no mood to compromise, said ‘[i]t is now what might be called “criminal negligence” ’. Indifferent to Lansing’s attitude, the Commission decided to include Pollock’s proposed amendment.73

The Americans considered the issue in their dissenting opinion. As they saw it, the problem concerned punishment not for crimes where the accused was the direct perpetrator, which was a matter of no dispute, but rather for crimes committed by others and for which there was no proof that the accused knew of their commission or, knowing they would be committed, (p.173) could have prevented them. In such cases, said the memorandum, ‘neither knowledge of commission nor ability to prevent is alone sufficient. The duty or obligation to act is essential.’ The American delegates noted that the Commission had softened its position somewhat in the final Report. The memorandum described the final text of the Commission as ‘much less objectionable’ and suggested that it might be acceptable.74

Notes:

(1.) See above, pp. 12–13.

(2.) Meeting of the Imperial War Cabinet, 10 Downing Street, 20 November 1918, 12 noon, TNA CAB/23/37/37, p. 5.

(3.) F. Larnaude and A. de Lapradelle, ‘Inquiry into the Penal Liabilities of the Emperor William II’, in Commission on the Responsibility of the Authors of the War, Minutes of Meetings of the Commission, USNA 181.1201/16, pp. 4–18, at p. 10.

(4.) ibid. p. 9.

(5.) Meeting of Sub-Commission III, 4 March 1919, Minutes: TNA FO 608/246, p. 4; USNA 181.12301/5 (M 820, Roll 144, 63–83), p. 4; USNA 181.12301/5 (M 820, Roll 144, 84–103), p. 5; USNA 181.12301/5 (M 820, Roll 144, 104–12), p. 3; USNA 181.12301/5 (M 820, Roll 144, 113–39 French), p. 5.

(6.) Preliminary Peace Conference, Protocol No. 1, 25 January 1919, USNA 180.0201/2, Annex II.

(7.) Memorandum of the American Delegation, 10 February 1919, USNA 181.1201/16, pp. 33–4; USNA 181.12201/1; TNA FO 608/246.

(8.) George A. Finch, ‘Memorandum Regarding the Responsibility of the Authors of the War and for Crimes Committed in the War’, in David Hunter Miller, My Diary at the Conference of Paris, with Documents, Vol. III, [New York]: Printed for the author, 1924, pp. 458–506, at pp. 505–6

(9.) Meeting of Sub-Commission III, 4 March 1919, Minutes: TNA FO 608/246, pp. 2–3; USNA 181.12301/5 (M 820, Roll 144, 63–83), pp. 2–3; USNA 181.12301/5 (M 820, Roll 144, 84–103), pp. 3–4; USNA 181.12301/5 (M 820, Roll 144, 104–12), pp. 1–2; USNA 181.12301/5 (M 820, Roll 144, 113–39 French), pp. 1–2; Recueil des actes, pp. 350–6, at pp. 350–2.

(10.) Second Meeting of the Commission on Responsibilities, 7 February 1919, Minutes: USNA 181.1201/16, pp. 19–25, at pp. 23–4; USNA 181.1201/2 (M 820, Roll 140, 641–62), pp. 17–21; USNA 181.1201/2 (M 820, Roll 140, 663–84, Part 2), pp. 3–7; Recueil des actes, pp. 31–7, at pp. 35–7; Paix de Versailles, pp. 16–29, at pp. 25–9; USNA 181.1201/2 (M 820, Roll 140, 734–59, Part 2 French), pp. 10–12.

(11.) Memorandum presented by the Solicitor General of England, 7 February 1919, TNA FO 608/246; USNA 185.118.22; USNA 181.1201/16, pp. 26–7, at p. 27; Recueil des actes, p. 40.

(12.) Joint First Meeting of Sub-Commissions II and III, 14 February 1919, Minutes: USNA 181.12201/1 (M 820, Roll 143, 333–45), p. 3; USNA 181.12201/1 (M 820, Roll 143, 346–50), pp. 2–3; USNA 181.12201/1 (M 820, Roll 143, 356–72 French), pp. 11–12; USNA 181.12201/1 (M 820, Roll 143, 373–94 French), pp. 6–7; Recueil des actes, pp. 302–5, p. 303. Stenographic notes: TNA FO 608/246, p. 3.

(13.) See above, pp. 127–8.

(14.) Meeting of Sub-Commission III, 4 March 1919, Minutes: TNA FO 608/246, p. 1; USNA 181.12301/5 (M 820, Roll 144, 63–83), p. 1; USNA 181.12301/5 (M 820, Roll 144, 84–103), p. 2; USNA 181.12301/5 (M 820, Roll 144, 104–12), p. 3; USNA 181.12301/5 (M 820, Roll 144, 113–39 French), p. 2; Recueil des actes, pp. 350–6, at p. 350.

(15.) Memorandum submitted by the British delegates, 13 February 1919, USNA 181.1201/16, pp. 27–33, at p. 30; Scott Papers, Box 30.3a, p. 11; Recueil des actes, pp. 41–50, at p. 47.

(16.) Draft report of Sub-Commission III, 4 March 1919, USNA 181.12302/2.

(17.) Meeting of Sub-Commission III, 4 March 1919, Minutes: TNA FO 608/246, p. 17; USNA 181.12301/5 (M 820, Roll 144, 63–83), p. 17; USNA 181.12301/6 (M 820, Roll 144, 165–86), pp. 15–16; USNA 181.12301/6 (M 820, Roll 144, 187–96), p. 6; USNA 181.12301/5 (M 820, Roll 144, 197–220 French), p. 17; Recueil des actes, pp. 359–66, at pp. 357–8.

(18.) Meeting of Sub-Commission III, 4 March 1919, Minutes: TNA FO 608/246, pp. 11–19; USNA 181.12301/5 (M 820, Roll 144, 63–83), pp. 11–19; USNA 181.12301/5 (M 820, Roll 144, 84–103), pp. 12–18; USNA 181.12301/5 (M 820, Roll 144, 104–12), pp. 6–8; USNA 181.12301/5 (M 820, Roll 144, 113–39 French), pp. 17–27; Recueil des actes, pp. 350–6, at pp. 354–6.

(19.) Swiss Minister 3 April, Responsibility for the War, TNA FO 608/247/17.

(20.) Third Meeting of the Commission on Responsibilities, 12 March 1919, Minutes: USNA 181.1201/16, pp. 35–9, at pp. 37–8; USNA 181.1201/3 (M 820, Roll 141, 5–24), pp. 7–10; USNA 181.1201/3 (M 820, Roll 141, 25–32), pp. 5–6; USNA 181.1201/3 (M 820, Roll 141, 33–57), pp. 11–14; USNA 181.1201/3 (M 820, Roll 141, 58–69 French), pp. 6–9; USNA 181.1201/3 (M 820, Roll 141, 70–91 French), pp. 7–10; Recueil des actes, pp. 52–8, at pp. 55–6. Stenographic notes: TNA FO 678/245, pp. 274–93, at pp. 280–3.

(21.) Third Meeting of the Commission on Responsibilities, 12 March 1919, Minutes: USNA 181.1201/16, pp. 35–9, at pp. 38–9; USNA 181.1201/3 (M 820, (p.359) Roll 141, 5–24), pp. 10–24; USNA 181.1201/3 (M 820, Roll 141, 25–32), pp. 6–9; USNA 181.1201/3 (M 820, Roll 141, 33–57), pp. 14–24; USNA 181.1201/3 (M 820, Roll 141, 58–69 French), pp. 9–13; USNA 181.1201/3 (M 820, Roll 141, 70–91 French), pp. 11–21; Recueil des actes, pp. 52–8, at pp. 56–8. Stenographic notes: TNA FO 678/245, pp. 274–93, at pp. 283–93.

(22.) Fourth Meeting of the Commission on Responsibilities, 13 March 1919, Minutes: USNA 181.1201/16, pp. 57–61, at pp. 57–8; USNA 181.1201/4 (M 820, Roll 141, 156–76), pp. 1–2; USNA 181.1201/4 (M 820, Roll 141, 199–209), pp. 1–2; Recueil des actes, pp. 82–9, at p. 83; Paix de Versailles, pp. 339–52, at p. 340; USNA 181.1201/4 (M 820, Roll 141, 213–41 French), pp. 3–4; USNA 181.1201/4 (M 820, Roll 141, 242–55 French), pp. 2–3. Stenographic notes: TNA FO 678/245, pp. 294–321, at pp. 296–7.

(23.) Fourth Meeting of the Commission on Responsibilities, 13 March 1919, Minutes: USNA 181.1201/16, pp. 57–61, at p. 58; USNA 181.1201/4 (M 820, Roll 141, 156–76), pp. 3–4; USNA 181.1201/4 (M 820, Roll 141, 199–209), pp. 2–3; Recueil des actes, pp. 82–9, at p. 84; Paix de Versailles, pp. 339–52, at p. 341; USNA 181.1201/4 (M 820, Roll 141, 213–41 French), pp. 6–7; USNA 181.1201/4 (M 820, Roll 141, 242–55 French), p. 4. Stenographic notes: TNA FO 678/245, pp. 294–321, at pp. 299–300.

(24.) Fourth Meeting of the Commission on Responsibilities, 13 March 1919, Minutes: USNA 181.1201/16, pp. 57–61, at p. 58; USNA 181.1201/4 (M 820, Roll 141, 156–76), pp. 5–6; USNA 181.1201/4 (M 820, Roll 141, 199–209), p. 203; Recueil des actes, pp. 82–9, at p. 84; Paix de Versailles, pp. 339–52, at p. 342; USNA 181.1201/4 (M 820, Roll 141, 213–41 French), pp. 7–8; USNA 181.1201/4 (M 820, Roll 141, 242–55 French), pp. 4–5. Stenographic notes: TNA FO 678/245, pp. 294–321, at pp. 300–1.

(25.) Draft Report of the Commission, USNA 181.1201/16, pp. 83–96, at pp. 92–4.

(26.) Ninth Meeting of the Commission on Responsibilities, 25 March 1919, Minutes: USNA 181.1201/16, pp. 97–102, at p. 101; USNA 181.1201/9 (M 820, Roll 141, 647–75), pp. 21–2; USNA 181.1201/9 (M 820, Roll 141, 676–704), pp. 22–4; Receuil des actes, pp. 138–47, at p. 145; Paix de Versailles, pp. 423–31, at pp. 429–30; USNA 181.1201/9 (M 820, Roll 141, 714–47 French), pp. 31–4. Stenographic notes: TNA FO 608/245, pp. 422–62, at pp. 452–5.

(27.) Report of the Commission on Responsibilities, USNA 181.1201/16, pp. 115–76, at pp. 126–7.

(28.) Memorandum of reservations presented by the Representatives of the United States, 4 April 1919, USNA 181.1201/16, pp. 162–74.

(29.) Report of the Commission on Responsibilities, USNA 181.1201/16, pp. 115–76, at p. 123.

(30.) James Brown Scott, ‘The Trial of the Kaiser’, in Edward M. House and Charles Seymour (eds), What Really Happened at Paris?, London: Hodder & Stoughton, 1921, pp. 231–58, at p. 238

(31.) F. Larnaude and A. de Lapradelle, ‘Inquiry into the Penal Liabilities of the Emperor William II’, in Commission on the Responsibility of the Authors of (p.360) the War, Minutes of Meetings of the Commission, USNA 181.1201/16, pp. 4–18

(33.) Memorandum submitted by the British delegates, 13 February 1919, USNA 181.1201/16, pp. 27–33, at p. 28; Scott Papers, Box 30.3a, pp. 2–3; Recueil des actes, pp. 41–50, at p. 42.

(34.) Memorandum submitted by the British delegates, 13 February 1919, USNA 181.1201/16, pp. 27–33, at p. 29; Scott Papers, Box 30.3a, pp. 5–6; Recueil des actes, pp. 41–50, at p. 44.

(35.) Third Meeting of the Commission on Responsibilities, Minutes, 12 March 1919, USNA 181.1201/16, pp. 35–9, at p. 37; USNA 181.1201/3 (M 820, Roll 141, 5–24), p. 9; USNA 181.1201/3 (M 820, Roll 141, 25–32), p. 6; USNA 181.1201/3 (M 820, Roll 141, 33–57), p. 13; TNA FO 678/245, pp. 274–93, at p. 283; USNA 181.1201/3 (M 820, Roll 141, 58–69 French), p. 8; USNA 181.1201/3 (M 820, Roll 141, 70–91 French), pp. 10–11; Recueil des actes, pp. 52–8, at p. 56.

(36.) Third Meeting of the Commission on Responsibilities, Minutes, 12 March 1919, USNA 181.1201/16, pp. 35–9, at p. 38; USNA 181.1201/3 (M 820, Roll 141, 5–24), pp. 10–12; USNA 181.1201/3 (M 820, Roll 141, 25–32), pp. 6–7; USNA 181.1201/3 (M 820, Roll 141, 33–57), pp. 13–17; TNA FO 678/245, pp. 274–93, at pp. 284–6; USNA 181.1201/3 (M 820, Roll 141, 58–69 French), pp. 9–10; USNA 181.1201/3 (M 820, Roll 141, 70–91 French), pp. 11–13; Recueil des actes, pp. 52–8, at p. 56.

(37.) Geoffrey Robertson, The Tyrannicide Brief, London: Vintage, 2006

(38.) Third Meeting of the Commission on Responsibilities, Minutes, 12 March 1919, USNA 181.1201/16, pp. 35–9, at p. 38; USNA 181.1201/3 (M 820, Roll 141, 5–24), pp. 12–14; USNA 181.1201/3 (M 820, Roll 141, 25–32), p. 7; USNA 181.1201/3 (M 820, Roll 141, 33–57), pp. 17–19; TNA FO 678/245, pp. 274–93, at pp. 286–7; USNA 181.1201/3 (M 820, Roll 141, 58–69 French), pp. 10–11; USNA 181.1201/3 (M 820, Roll 141, 70–91 French), pp. 13–14; Recueil des actes, pp. 52–8, at p. 57.

(39.) Report of Sub-Commission III on the Laws and Customs of War, USNA 181.1201/16, pp. 50–4, at p. 53.

(40.) Emphasis in the original.

(41.) Third Meeting of the Commission on Responsibilities, Minutes, 12 March 1919, USNA 181.1201/16, pp. 35–9, at pp. 38–9; USNA 181.1201/3 (M 820, Roll 141, 5–24), pp. 13–14 (emphasis in the original); USNA 181.1201/3 (M 820, Roll 141, 25–32), pp. 8–9; USNA 181.1201/3 (M 820, Roll 141, 33–57), pp. 19–24; TNA FO 678/245, pp. 274–93, at pp. 287–92; USNA 181.1201/3 (M 820, Roll 141, 58–69 French), pp. 11–13; USNA 181.1201/3 (M 820, Roll 141, 70–91 French), pp. 14–20; Recueil des actes, pp. 52–8, at pp. 57–8.

(42.) Fourth Meeting of the Commission on Responsibilities, Minutes, 13 March 1919, USNA 181.1201/16, pp. 57–61, at pp. 58–9; USNA 181.1201/4 (M 820, Roll 141, 156–76), pp. 7–10; USNA 181.1201/4 (M 820, Roll 141, 177–98), pp. 6–10; (p.361) USNA 181.1201/4 (M 820, Roll 141, 199–209), p. 5; Recueil des actes, pp. 82–9, at p. 84–6; Paix de Versailles, pp. 339–52, at pp. 342–4; TNA FO 678/245, pp. 294–321, at pp. 302–8; USNA 181.1201/4 (M 820, Roll 141, 213–41 French), pp. 9–15; USNA 181.1201/4 (M 820, Roll 141, 242–55 French), pp. 5–8.

(43.) Fourth Meeting of the Commission on Responsibilities, Minutes, 13 March 1919, USNA 181.1201/4 (M 820, Roll 141, 199–209), p. 6; Paix de Versailles, pp. 339–52, at p. 348; TNA FO 678/245, pp. 294–321, at p. 316; USNA 181.1201/4 (M 820, Roll 141, 213–41 French), pp. 23–4; Paix de Versailles, pp. 339–52, at p. 350.

(44.) Fifth Meeting of the Commission on Responsibilities, 14 March 1919, Minutes: USNA 181.1201/16, pp. 62–6, at p. 64; Recueil des actes, pp. 90–6, at p. 93; USNA 181.1201/5 (M820, Roll 141, 264–81), p. 10; USNA 181.1201/5 (M820, Roll 141, 314–22), p. 5.

(45.) Fifth Meeting of the Commission on Responsibilities, 14 March 1919, Minutes: USNA 181.1201/16, pp. 62–6, at p. 65; Recueil des actes, pp. 90–6, at p. 95; USNA 181.1201/5 (M820, Roll 141, 264–81), p. 13; USNA 181.1201/5 (M820, Roll 141, 282–92), p. 7; USNA 181.1201/5 (M820, Roll 141, 314–22), p. 7.

(46.) Seventh Meeting of the Commission on Responsibilities, 17 March 1919, Minutes: USNA 181.1201/16, pp. 69–74, at p. 70; USNA 181.1201/7 (M 820, Roll 141, 403–23), pp. 3–4; USNA 181.1201/7 (M 820, Roll 141, 425–36), p. 3; Recueil des actes, pp. 100–7, at p. 101; Paix de Versailles, pp. 369–83, at p. 371; USNA 181.1201/7 (M 820, Roll 141, 464–92 French), pp. 5–6. Stenographic notes: TNA FO 678/245, pp. 355–82, at pp. 5–6.

(47.) Seventh Meeting of the Commission on Responsibilities, 17 March 1919, Minutes: USNA 181.1201/16, pp. 69–74, at p. 71; USNA 181.1201/7 (M 820, Roll 141, 403–23), pp. 8–9; USNA 181.1201/7 (M 820, Roll 141, 425–36), pp. 5–6; Recueil des actes, pp. 100–7, at p. 103; Paix de Versailles, pp. 369–83, at p. 374; USNA 181.1201/7 (M 820, Roll 141, 464–92 French), p. 11. Stenographic notes: TNA FO 678/245, pp. 355–82, at pp. 365–6.

(48.) Draft Report of the Commission, USNA 181.1201/16, pp. 83–96, at p. 93.

(49.) ibid. p. 91.

(50.) Eighth Meeting of the Commission on Responsibilities, 24 March 1919, Minutes: USNA 181.1201/16, pp. 76–82, at pp. 77–8; TNA FO 608/245, pp. 383–421, at p. 390; USNA 181.1201/8 (M 820, Roll 141, 555–60 French), p. 5; USNA 181.1201/8 (M 820, Roll 141, 566–99 French), p. 7; USNA 181.1201/8 (M 820, Roll 141, 600–15 French), p. 4; Paix de Versailles, pp. 413–22, at p. 415; Recueil des actes, pp. 109–18, at p. 111.

(51.) Ninth Meeting of the Commission on Responsibilities, 25 March 1919, Minutes: USNA 181.1201/16, pp. 97–102, at p. 101; USNA 181.1201/9 (M 820, Roll 141, 647–75), p. 26; USNA 181.1201/9 (M 820, Roll 141, 676–704), p. 27.

(52.) Ninth Meeting of the Commission on Responsibilities, 25 March 1919, Minutes: USNA 181.1201/16, pp. 97–102, at pp. 98–9; USNA 181.1201/9 (M 820, Roll 141, 647–75), pp. 5–10; USNA 181.1201/9 (M 820, Roll 141, 676–704), pp. 2–5; USNA 181.1201/9 (M 820, Roll 141, 714–47 French), pp. 8–14. Stenographic notes: TNA FO 608/245, pp. 422–62, at pp. 428–36.

(53.) Redraft of Chapter III of the Report, USNA 181.1201/16, pp. 107–8; Receuil des actes, pp. 155–6.

(54.) Tenth Meeting of the Commission on Responsibilities, 27 March 1919, Minutes: USNA 181.1201/16, pp. 103–8, at p. 105; USNA 181.1201/10 (M820, Roll 141, 774–94), p. 10; USNA 181.1201/10 (M820, Roll 141, 795–823), p. 12; USNA 181.1201/10 (M820, Roll 141, 824–57 French), p. 16. Stenographic notes: TNA FO 678/245, pp. 463–95, at pp. 477.

(55.) A. de Lapradelle and F. Larnaude, ‘Inquiry into the Penal Liabilities of the Emperor William II’, USNA 181.1201/16, pp. 4–18.

(56.) Memorandum submitted by the British delegates, 13 February 1919, USNA 181.1201/16, pp. 27–33, at p. 29; Recueil des actes, pp. 41–50, at p. 44.

(57.) Report of the Commission on Responsibilities, USNA 181.1201/16, pp. 112–76, at p. 126.

(58.) Draft Report of Sub-Commission III, USNA 181/12302/2, p. 8.

(59.) Second draft Report of Sub-Commission III, 8 March 1919, USNA 181.12302/3.

(60.) Meeting of Sub-Commission III, 8 March 1919, USNA 181.12301/6 (M 820, Roll 144, 140–64), pp. 11–12; TNA FO 608/246, pp. 11–12; USNA 181.12301/6 (M 820, Roll 144, 165–86), p. 8; USNA 181.12301/6 (M 820, Roll 144, 197–220 French), p. 8; Recueil des actes, pp. 359–66, at pp. 364–5.

(61.) Meeting of Sub-Commission III, 8 March 1919, USNA 181.12301/6 (M 820, Roll 144, 140–64), pp. 11–12; TNA FO 608/246, pp. 11–12; USNA 181.12301/6 (M 820, Roll 144, 165–86), pp. 2–3; USNA 181.12301/6 (M 820, Roll 144, 187–96), p. 2; USNA 181.12301/6 (M 820, Roll 144, 197–220 French), p. 4; Recueil des actes, pp. 359–66, at p. 360.

(62.) Meeting of Sub-Commission III, 8 March 1919, USNA 181.12301/6 (M 820, Roll 144, 140–64), pp. 11–12; TNA FO 608/246, pp. 11–12; USNA 181.12301/6 (M 820, Roll 144, 165–86), p. 4; USNA 181.12301/6 (M 820, Roll 144, 187–96), p. 3; USNA 181.12301/6 (M 820, Roll 144, 197–220 French), p. 5; Recueil des actes, pp. 359–66, at pp. 360–1.

(63.) Meeting of Sub-Commission III, 8 March 1919, USNA 181.12301/6 (M 820, Roll 144, 140–64), pp. 11–12; TNA FO 608/246, pp. 11–12; USNA 181.12301/6 (M 820, Roll 144, 165–86), p. 5; USNA 181.12301/6 (M 820, Roll 144, 187–96), p. 3; USNA 181.12301/6 (M 820, Roll 144, 197–220 French), pp. 5–6; Recueil des actes, pp. 359–66, at p. 361.

(64.) Meeting of Sub-Commission III, 8 March 1919, USNA 181.12301/6 (M 820, Roll 144, 140–64), pp. 11–12; TNA FO 608/246, pp. 11–12; USNA 181.12301/6 (M 820, Roll 144, 165–86), pp. 6–7; USNA 181.12301/6 (M 820, Roll 144, 187–96), pp. 3–4; USNA 181.12301/6 (M 820, Roll 144, 197–220 French), pp. 7–8; Recueil des actes, pp. 359–66, at p. 362.

(65.) Meeting of Sub-Commission III, 8 March 1919, USNA 181.12301/6 (M 820, Roll 144, 140–64), pp. 11–12; TNA FO 608/246, pp. 11–12; USNA 181.12301/6 (M 820, Roll 144, 165–86), p. 10; USNA 181.12301/6 (M 820, Roll 144, 197–220 French), p. 12; Recueil des actes, pp. 359–66, at p. 363.

(66.) Meeting of Sub-Commission III, 8 March 1919, USNA 181.12301/6 (M 820, Roll 144, 140–64), pp. 11–12; TNA FO 608/246, pp. 11–12; USNA 181.12301/6 (M 820, Roll 144, 165–86), pp. 11–12; USNA 181.12301/6 (M 820, Roll 144, 187–96), p. 4; USNA 181.12301/6 (M 820, Roll 144, 197–220 French), pp. 12–13; Recueil des actes, pp. 359–66, at p. 363.

(67.) Meeting of Sub-Commission III, 8 March 1919, USNA 181.12301/6 (M 820, Roll 144, 187–96), p. 4; TNA FO 608/246, p. 4; USNA 181.12301/6 (M 820, Roll 144, 197–220 French), p. 12; Recueil des actes, pp. 359–66, at p. 363.

(68.) Third Meeting of the Commission on Responsibilities, Minutes, 12 March 1919, USNA 181.1201/16, pp. 35–9, at pp. 36–7; USNA 181.1201/3 (M 820, Roll 141, 5–24), p. 57; USNA 181.1201/3 (M 820, Roll 141, 25–32), p. 3; USNA 181.1201/3 (M 820, Roll 141, 33–57), pp. 8–10; USNA 181.1201/3 (M 820, Roll 141, 58–69 French), p. 5; USNA 181.1201/3 (M 820, Roll 141, 70–91 French), pp. 6–7; Recueil des actes, pp. 52–8, at p. 54.

(69.) Fourth Meeting of the Commission on Responsibilities, Minutes, 13 March 1919, USNA 181.1201/16, pp. 57–61, at p. 59; USNA 181.1201/4 (M 820, Roll 141, 156–76), p. 10; USNA 181.1201/4 (M 820, Roll 141, 199–209), p. 5; Recueil des actes, pp. 82–9, at p. 86.

(70.) Fourth Meeting of the Commission on Responsibilities, Minutes, 13 March 1919, USNA 181.1201/16, pp. 57–61, at p. 60; USNA 181.1201/4 (M 820, Roll 141, 156–76), pp. 18–19; USNA 181.1201/4 (M 820, Roll 141, 199–209), p. 9; Recueil des actes, pp. 82–9, at p. 88; Paix de Versailles, pp. 339–52, at pp. 350–1; TNA FO 678/245, pp. 294–321, at pp. 317–18; USNA 181.1201/4 (M 820, Roll 141, 213–41 French), p. 24.

(71.) Fifth Meeting of the Commission on Responsibilities, 14 March 1919, Minutes: USNA 181.1201/16, pp. 62–6, at pp. 65–6; Recueil des actes, pp. 90–6, at p. 96; USNA 181.1201/5 (M820, Roll 141, 264–81), p. 16; USNA 181.1201/5 (M820, Roll 141, 282–92), p. 9; USNA 181.1201/5 (M820, Roll 141, 314–22), p. 8.

(72.) Draft Report of the Commission, USNA 181.1201/16, pp. 83–96, at p. 93.

(73.) Ninth Meeting of the Commission on Responsibilities, 25 March 1919, Minutes: USNA 181.1201/16, pp. 97–102, at p. 101; USNA 181.1201/9 (M 820, Roll 141, 647–75), p. 20; USNA 181.1201/9 (M 820, Roll 141, 676–704), pp. 20–1. Stenographic notes: TNA FO 608/245, pp. 422–62, at pp. 450–1.

(74.) Memorandum of reservations presented by the Representatives of the United States, 4 April 1919, USNA 181.1201/16, pp. 162–74.