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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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‘Hang the Kaiser’

‘Hang the Kaiser’

Chapter:
(p.10) 2 ‘Hang the Kaiser’
Source:
The Trial of the Kaiser
Author(s):

William A. Schabas

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198833857.003.0002

Abstract and Keywords

There is interest in prosecuting war crimes committed by Germany from the first weeks of the war. The execution of Edith Cavell and the sinking of the Lusitania help build public outrage and a desire for justice. The plan to try the Kaiser germinates when George Curzon and Georges Clemenceau meet in Paris immediately after the armistice in November 1918. Curzon and Lloyd George convince the Imperial War Cabinet to ask the Law Officers of the Crown to examine the question of charging the former Emperor, as well as the former Crown Prince, ‘for the crime against humanity of having caused the war’ and ‘for offences, by one or both, against international law during the war’, with the purpose of ‘bringing home to one or both the responsibility for the acts charged’. Lloyd George makes trial of the Kaiser part of his election campaign, using the slogan ‘hang the Kaiser’.

Keywords:   Georges Clemenceau, George Curzon, David Lloyd George, armistice, British election, Edith Cavell, Lusitania

Kaiser Bill, we are coming,With our army over sea.And you forgot our motto.Which is, ‘Do not tread on me.’It’s a job we never started, But we’ll finish Germany;And we’ll hang you, Kaiser William.On the highest linden tree.1

Hostilities on the Western Front began in the first days of August 1914. A speedy victory over France required German forces to avoid fortifications on the border between the two countries and instead to pass through neutral Belgium and Luxembourg on their way to Paris. When he addressed the Reichstag on 4 August, Chancellor Bethmann-Hollweg conceded that Germany had violated international law, promising to repair the wrong once victory was assured.2 Speaking to the British Ambassador that evening, Bethmann-Hollweg notoriously described the 1839 treaty protecting Belgian neutrality as ‘a scrap of paper’ for which ‘Great Britain was going to make war on a kindred nation who desired nothing better than to be friends with her’.3 When Foreign Minister Edward Grey addressed the House of Commons on 3 August, he stressed the profound British strategic interest in a neutral Belgium rather than the sanctity of an international treaty. Grey cited Gladstone who, at the time of the Franco-Prussian War of 1870, said Britain had ‘an interest in the independence of Belgium which is wider than that which we may have in the literal operation of the guarantee’.4

Within days of the German attack, great brutality by the invaders, described as ‘violations of the laws and customs of war’, was being reported. On (p.11) 7 August 1914, the Belgian Minister of Justice announced the establishment of a commission charged with gathering evidence of enemy violations of ‘the law of nations and the duties of humanity’. A series of reports was published in the months that followed.5 In France, on 23 September 1914, the ministers of the interior and of war established a commission of inquiry. Chaired by Georges Payelle, a senior judge, it issued twelve detailed reports on German atrocities over the course of the war, addressing a range of issues, including the use of gas and other prohibited means of warfare, such as dum-dum bullets.6 In early December 1914, Britain set up the Committee on Alleged German Outrages, chaired by Viscount James Bryce. Its report, published in May 1915, documented a range of violations in occupied Belgium, including massacres of the civilian population, looting, wanton destruction of property, rape of women and girls, the use of human shields, and abuse of prisoners. It concluded that ‘in the conduct of the war generally innocent civilians, both men and women, were murdered in large numbers, women violated, and children murdered’. Moreover, ‘looting, house burning, and the wanton destruction of property were ordered and countenanced by the officers of the German army’. The Commission said that ‘the rules and usages of war were frequently broken’.7 After the war, there was considerable scepticism about the validity of the reports of atrocities, particularly during the 1920s and 1930s, when it was suggested that these were exaggerations of Allied propagandists. But more recently, historians have tended to attribute considerable credence to the allegations and to judge those who made them, like Bryce, as persons of integrity.8

English public opinion was further galvanised when nurse Edith Cavell was convicted of treason by German courts for assisting Allied soldiers to escape from occupied Belgium. She was executed by firing squad on 12 October 1915. A huge monument to Nurse Cavell, bearing the inscription ‘Humanity’, sits at the foot of London’s Charing Cross Road, across from the National Portrait Gallery. Shortly after her death, Charles Fryatt, the skipper of an English merchant steamship trading with the Dutch and frequently crossing the North Sea, was sentenced to death by a German court-martial for ramming a submarine. Fryatt was executed by firing squad on 27 July 1916. His execution, like that of Nurse Cavell, was often invoked as an act requiring criminal punishment of the Germans who were responsible.9

During the early days and months of the First World War, captured enemy combatants were tried for various violations of the laws and customs of war. For example, on 5 October 1914, the newspaper Écho de Paris reported that two German soldiers had been tried by French courts and sentenced to death (p.12) for pillage.10 On 26 January 1915, Karl Vogelgesang was sentenced to death for pillage and arson committed in Belgium.11 Le Temps published a call for war crimes trials by a French prosecutor.12 Initially, the British treated the crews of German submarines as war criminals who were to be tried for breaching international law. When Germany retaliated, by putting captured officers in military detention barracks, Britain changed its policy with respect to submariners. By mid-1916, both sides in the conflict had come to understand the vulnerability of their own prisoners, and the danger of escalating reprisals. Reciprocity in staying criminal prosecution while the war was underway no doubt saved the lives of many prisoners of war. Eventually, the practice of deferring prosecutions was codified to some extent in the first Geneva Convention on prisoners of war, but that would have to wait until 1929.13

Had the Germans won the war, they might well have insisted on charging French and British leaders, and perhaps even King George V, with provoking the conflict. German thinking on this point became evident when Romania surrendered to Germany and Austria in May 1918. Military leaders in Berlin wanted to try Romania’s monarch, King Ferdinand, and the country’s political leaders. The charge would have been launching war against Austria and Germany in 1916, in violation of an international agreement. The onerous Treaty of Bucharest accepted by Romania reserved the right of Germany and Austria to detain those prisoners who were suspected of violating the laws and customs of war. In the Reichstag, an independent socialist deputy warned the government that punishment of Romanian war criminals might provide a justification to the Allied Powers for doing the same thing. Most Germans were not worried because of their confidence in a favourable outcome of the war.14

During 1916, the French and the British discussed various measures to deal with German war crimes. In France, proposals for an international court for the repression of war crimes were warmly received by the central committee of the Ligue pour la défense des droits de l’homme et du citoyen.15 In England, Hugh Bellot, one of the country’s prominent international lawyers,16 wrote that ‘the Hague Court, if instituted, might be invested with an original jurisdiction for the trial and punishment of offenders brought before it either during the war or upon its conclusion, or both’.17 The French Government prepared two draft agreements, one for a court in which all of the Allies would participate, the other for a court to be established only by Britain and France. These are the first known drafts of an international criminal court statute at the official or governmental level. Trial was to be by a jury composed of nationals of (p.13) the participating countries. The tribunal would exercise jurisdiction over ‘ordering, allowing to be ordered or perpetrating on land or sea, crimes, killings, murders and assaults of any kind against the life and security of persons in violation of the laws and customs of war on land or sea’. The tribunal would be able to function in the absence of the accused, the surrender of those judged in absentia being a condition of any peace agreement.18

That the German Emperor himself might be punished for leading his country, and the continent, into war, and that he could be held personally accountable for various outrages attributable to German combatants, was an idea that surfaced only occasionally. An unsigned article in the Edinburgh Review, published in October 1914, described the invasion of Belgium not as an ‘act of war’, but as a ‘criminal act’, insisting that ‘the nations of the world must devise means to bring the authors of such act to trial and punishment’.19 But at sessions of the French General Society of Prisons in 1915 and 1916, where there was ‘a very good debate’ about prosecuting war crimes committed by Germans before French courts, ‘the question of the responsibility of the German Emperor was barely touched’.20

When a German submarine torpedoed the ocean liner RMS Lusitania off the south coast of Ireland on 7 May 1915, taking the lives of more than 1,000 civilian passengers, there were calls to hold the German Emperor personally responsible for the atrocity. Lord Robert Cecil, a future Nobel Peace Prize laureate, told a meeting at Chelsea Town Hall that ‘for the terrible outrages, the wholesale breaches of every law and custom of civilised warfare which the Germans had committed, the people who were responsible were the German rulers, the Emperor and those who were closely advising him, and it was upon them if possible that our punishment and wrath should fall’.21 A coroner’s jury in Kinsale, Ireland, near where the RMS Lusitania went down, delivered a verdict stating that ‘this appalling crime was contrary to international law and the conventions of all civilised nations, and we therefore charge to [sic] officers of the said submarine and the Emperor and Government of Germany, under whose orders they acted, with the crime of wilful and wholesale murder before the tribunal of the civilised world’.22

Prime Minister Asquith’s response to the sinking of the RMS Lusitania, which seemed to indicate that perpetrators who acted under orders were immune to punishment, was criticised as being ‘too vague’ and ‘quite ineffective as a preventive measure’.23 ‘If each offender can plead as an excuse the order of his immediate superior officer we arrive at last at the German Government or the Kaiser’, wrote Hugh Bellot. But Bellot did not seem to (p.14) think that prosecuting the Kaiser was feasible either. ‘To indict a Government is as futile as to indict a nation, and even a Hague Tribunal would hesitate to create another St. Charles the Martyr in the person of William the Second.’24

As the war drew to a close, in the final months of 1918, policy-makers in Britain and France increased their attention to the prosecution of war crimes. Initially, however, Kaiser Wilhelm did not figure in the discussions. Angered by new reports of German atrocities as the armies retreated in north-eastern France, the French approached the British with a request for ‘a solemn declaration on the part of the Allies, having as its object the punishment of, and reparation for, these crimes’.25 But the British did not endorse the French proposal. The Imperial War Cabinet agreed to express ‘the warmest sympathy with the French Government’, but thought ‘suggestions as to actual method should be more precise’.26 As an alternative, Foreign Minister Balfour suggested that Britain threaten Germany with reprisals, specifically the aerial bombing of several German towns, a measure he said would ‘produce the maximum of terror’.27 The French went ahead on their own, informing Germany that organisers as well as perpetrators of crimes should be held accountable, morally, penally, and materially, regardless of their position. ‘Acts so contrary to international law and to the very principle of all human civilisation shall not go unpunished’, France insisted.28 When Foreign Minister Stéphane Pichon reported on the government’s position in the Senate on 15 October, he received a firm endorsement.29

On 30 September 1918, Britain’s most senior lawyers, Attorney General Frederick E. Smith (later Lord Birkenhead) and Solicitor General Gordon Hewart, who were known as the Law Officers of the Crown, urged Prime Minister Lloyd George to set up a ‘strong Committee of Jurists and others’ to consider how to prosecute German war criminals. Smith and Hewart noted that a French Committee was ‘working with similar aims’.30 Smith, who had built his reputation prosecuting the Irish nationalist Roger Casement in 1916, was already on record as a strong advocate of criminal trials. Speaking to the New York State Bar Association in January 1918, Smith contended that war crimes prosecutions would do more to preserve peace than establishment of a League of Nations, an institution for which he had no enthusiasm.31 At a meeting in Liverpool on 18 September 1918, Smith said he had given ‘close attention to the subject of international law, and I will tell you plainly that there is in international law abundant warrant for the punishment, both in their persons and in their purses, of proved and identified criminals’.32

(p.15) The British Set Up a Committee

Early in November, several days before the armistice, but at a time when the outcome of the conflict was no longer in any doubt, acting under the authority of the War Cabinet, Attorney General Smith appointed a Committee of Enquiry into Breaches of the Law of War. The Committee was chaired by Sir John Macdonnell, who was then King’s Remembrancer, a senior judicial post of ancient origin. The Vice-Chairman was J. H. Morgan, a military lawyer. A number of distinguished jurists were named to sit on the Committee, including Frederick Pollock, a prominent barrister who would later be instructed to prepare the case against the Kaiser for trial. Hugh Bellot and J. E. G. de Montmorency served as secretaries of the Committee. The Committee was assigned to inquire into and report upon the facts with respect to ‘breaches of the laws and customs of war, affecting members of the British armed forces or other British subjects, committed by the forces of the German Empire and their allies on land, on sea, and in the air during the present war’. This was to include assessing the degree of responsibility of German military officials, ‘including the German General Staff, or other highly placed individuals’. There was no explicit reference to the German Emperor himself. The Committee was also to consider issues concerning the creation of an appropriate tribunal for such offences.33 Sub-Committees were established to deal with offences on land, at sea, and in the air. A fourth Sub-Committee was to address legal matters. It was chaired by Professor J. H. Morgan and included Sir Frederick Pollock, who had earlier served on the Bryce Committee.

The Attorney General addressed the Committee at its first meeting, on 6 November 1919. ‘It is certain that in the events that have taken place in the last four and a half years many great crimes against International Law have been committed’, said Smith. ‘This conclusion is not very vigorously disputed even in Germany today. The very origin of the War, the violation of Belgium, will for all time, I think, be remembered in the pages of history as one of the greatest crimes against civilisation.’34 The task of the Committee, he said, was ‘fixing and assigning responsibility for specific breaches of International Law in its many branches and departments of the War’. He gave as an example abuses of prisoners of war.35 Kaiser Wilhelm II was not mentioned.

Prime Minister Lloyd George was questioned at a meeting of the Imperial War Cabinet about Allied plans for prosecution. The Imperial War Cabinet consisted not only of senior British ministers, but also representatives (p.16) of the Dominions: Canada, Australia, New Zealand, South Africa, and Newfoundland, as well as India. Lloyd George said that criminal justice had figured in discussions with the Allies about the terms of an armistice, but that the matter had been ‘left over until the peace conference’.36 Indeed, the issue had not been addressed in discussions of war aims and terms of armistice in recent meetings of the Cabinet. Of course, the fate of the Kaiser himself was an inevitable concern, but it is not apparent that the possibility of prosecution was as yet taken seriously. On 11 November, after the armistice had been signed, British leaders celebrated with an ‘intimate dinner’ at 10 Downing Street. Sir Henry Wilson, who was Chief of the Imperial General Staff, recalled that: ‘Lloyd George wants to shoot the Kaiser. F.E. [Smith] agrees. Winston does not.’37 We do not know at what stage of the evening’s revelry this discussion occurred, but it is likely that drink had been taken previously.

On 14 November, Parliament was dissolved and an election was called. The electorate had expanded hugely compared with the previous Parliamentary elections, in 1910. There were now three times as many eligible voters, more than 21 million, compared with fewer than 8 million for the previous ballot. New legislation ensured the vote to most women over the age of 30 and all men over the age of 21. For those who had served in the war, the voting age was lowered to 19. The terms of peace with Germany did not initially feature in what became known as the ‘khaki election’, where issues of social policy and Irish independence were at the heart of the preliminary campaigning. Early in the campaign, Lloyd George spoke cautiously of punishing Germany and its leaders: ‘We must not allow any sense of revenge, any spirit of greed, and grasping desire to over-rule the fundamentals of justice’, he said. As the campaign reached its paroxysm in early December, Lloyd George issued his ‘Final Manifesto of Six Points’, two of which were ‘Trial of the Kaiser’ and ‘Punishment of those responsible for atrocities’. This was soon transformed into the more brutal slogan ‘Hang the Kaiser’, although Lloyd George claimed that these were not his words. He had only called for prosecution, not execution.38

Many years later, Vittorio Emanuele Orlando, Italy’s Prime Minister in 1918 and 1919, described the thirst for justice that emerged in Britain in the aftermath of the war and that he witnessed first-hand in London. There was ‘a state of anger and grudge that exploded immediately after the armistice’ and that ‘worsened specifically between the middle and end of November 1918, by when tens of thousands of British officers and soldiers who had been prisoners of war in Germany returned to London, to tell of their privations, their (p.17) sufferings, the roughness of their treatment, the “tortures” (this was the word used) they had been subjected to’. Orlando said that the rising popular anger within Britain fuelled the election campaign, whose flames were fanned by Lloyd George and others. ‘It looked politically astute to take advantage of that state of mind, but it was an error to be paid for bitterly’, wrote Orlando.39

Lloyd George and Smith ensured there were political initiatives to correspond with their electoral programme. By the time of the electoral triumph, on 14 December 1918, important decisions about whether to try the Kaiser, the charges he would face, and the tribunal before which he would appear had already been made. The plan had been endorsed by the Imperial War Cabinet, by the country’s leading lawyers, and by the leaders of the two main European allies, France and Italy.

Clemenceau Wants Justice

Britain and France first discussed prosecuting the Kaiser at a meeting in Paris immediately following the armistice. Georges Clemenceau, the French Prime Minister, told George Curzon, a member of the Imperial War Cabinet, of his openness to trial of the Kaiser ‘as an act of international justice, of world retribution’. Clemenceau’s views had probably been informed by a memorandum of two law professors at the University of Paris, Ferdinand Larnaude and Albert Geouffre de Lapradelle. In a lengthy analysis, the academics concluded that any legal obstacles to a trial of the former German Emperor could be overcome.40 The memorandum was prepared at the request of the Cabinet, but it is not clear whether it was commissioned and submitted prior to the armistice. Clemenceau was pushing on an open door, easily convincing Curzon that a trial of the Kaiser ‘would be one of the most imposing events in history and that the conception was well worthy of being pursued’.41

The discussion extended to the form a tribunal for the Kaiser might take. Clemenceau contemplated an international court whose judges would not only be drawn from the Allied powers involved in the war, but also from neutral countries. The issue of obtaining custody of the Kaiser also arose. A few days earlier, Wilhelm II had crossed the border into the Netherlands, which had remained neutral during the war, and it was not apparent that he would be willingly surrendered by his Dutch hosts. Clemenceau considered the possibility of a trial at which the Kaiser would not be present. This was nothing exceptional under French law, where in absentia proceedings (p.18) are a frequent occurrence if custody of the accused cannot be obtained. He thought there would be no problem serving an indictment on the Kaiser in the Netherlands.42

After the meeting, Curzon wrote to Lloyd George to report about the encounter. He urged the Prime Minister to support the proposal of ‘an international tribunal of jurists of the highest eminence (they might or might not include neutrals, probably Yes)’. He said he did not know enough about international law to predict whether the Netherlands would surrender its guest. But he said that was not very important and seemed to endorse Clemenceau’s idea of a trial in absentia. With a sentence of ‘outlawry from the principal countries of the world, it would be a punishment signal, crushing, unheard of in history’, wrote Curzon.43 He credited Clemenceau with the origin of the proposal to try the Kaiser, but also made clear that he had been convinced of its wisdom. Curzon warned Lloyd George that public opinion would resisting letting ‘this arch-criminal escape by a final act of cowardice’. He said that the ‘supreme and colossal nature of his crime seems to call for some supreme and unprecedented condemnation’. Curzon thought execution and even imprisonment were not really necessary. That was because ‘continued life, an inglorious and ignoble exile, under the weight of such a sentence as has never before been given in the history of mankind, would be a penance worse than death’.44

Lloyd George replied to Curzon that the matter was worthy of consideration by the Imperial War Cabinet. Writing in the late 1930s, Lloyd George insisted that the idea of trying the Kaiser had been a personal initiative of Curzon. He suggested that this had never been discussed or even considered at the official level within Britain until Curzon’s discussion with Clemenceau.45 The likelihood, then, is that the trial of Kaiser Wilhelm was really a French initiative, developed by French academics and embraced by Clemenceau, who then persuaded Curzon during their tête-à-tête following the armistice. It might seem that Lloyd George was trying to distance himself from the plan to hold a trial by attributing it to Curzon, but later in the same account Lloyd George admitted that he was himself an enthusiastic supporter. Maurice Hankey, the Cabinet Secretary, even suggested that Curzon was ‘not in a very vindictive spirit’ and that it was Lloyd George ‘who felt strongly on the subject’ and ‘took it up with great vigour’.46

By July 1919, Curzon’s ardour for a trial cooled somewhat, possibly because he had been influenced by King George V. At this point, Lloyd George reminded Curzon how he had been the initiator of the whole (p.19) idea. The two men were not particularly close on a personal level, but they were often allied politically. In early 1919, with Foreign Secretary Balfour busy in Paris at the Peace Conference, Curzon was made Deputy Foreign Secretary and, later that same year, Foreign Secretary. He held the position until 1924, but was then passed over for Prime Minister. Lloyd George was not the only one to have doubts about Curzon’s abilities. Churchill wrote of Curzon’s career: ‘The morning had been golden; the noontide was bronze; and the evening lead.’47 Referring to Curzon as the first to propose trial of Kaiser Wilhelm at the official level, Churchill invoked the ‘piquant conjunction’ of Oscar Wilde, referring to an English country gentleman galloping after a fox: ‘The inexpressible in pursuit of the uneatable.’48 Curzon’s personal traits have been described as ‘coldness, arrogance, and pomposity’.49

The Imperial War Cabinet took up the matter of trial of the Kaiser at its meeting of 20 November 1918. Curzon reported on his encounter with Clemenceau the previous week. According to Curzon, Clemenceau had explained that the French experts ‘had not studied this question from the international law point of view, but, undoubtedly public opinion in France was strongly in favour of the trial of the ex-Kaiser’.50 This may have been Clemenceau’s misunderstanding, or Curzon’s, or possibly both, because in their opinion Larnaude and de Lapradelle relied most heavily on international law to make the case. ‘A way must be found to permit all the acts of which [Wilhelm II] has been guilty, because he ordered them as an Emperor and King and War Lord, to be adduced’, it said. ‘International law can supply this way; the facts charged against William II are international crimes; he must be tried before an international tribunal.’51

‘We know the war was started by the Kaiser, and we have reason to believe that all the cruelty, the iniquities, and the horrors that have been perpetrated, if not directly inspired by him, have been countenanced and in no way discouraged by him’, Curzon told the Imperial War Cabinet. ‘In my view the Kaiser is the arch-Criminal of the world, and just as in any other sphere of life when you get hold of a criminal you bring him to justice, so I do not see, because he is an Emperor and living in exile in another country, why he should be saved from the punishment which is his due.’ Curzon insisted that any action to get hold of the Kaiser would best be taken immediately, before the Peace Conference, when the German Emperor could still be considered a prisoner of war. ‘If you postponed it till after the Peace Conference you might not get him at all’, he warned.52

(p.20) Curzon thought that were Wilhelm to be tried and convicted, ‘it might be difficult to proceed as far as an execution, but, if found guilty, the ex-Kaiser could be treated as a universal outlaw, so that there would be no land on which he could set his foot. Moreover, this act of justice, taken by means of representatives of all the Allies and neutral countries, would be the first step in calling into being a League of Nations.’ Curzon said he had been assured by the Attorney General that the Committee studying the issue of war crimes prosecutions had not yet considered the question of indicting the Kaiser. However, the Attorney told him that ‘many of the members were in favour of that course, and would put before the War Cabinet proposals for the constitution of a tribunal for this purpose’.53

Lloyd George immediately endorsed what he described as ‘Clemenceau’s proposal’, although, he said, ‘with reservations’. In fact, he had none. Lloyd George felt it unnecessary ‘to lay down any limit of punishment. If the ex-Kaiser were guilty, he was guilty of a capital offence, for by his action he had recklessly put to death several millions’. Lloyd George said that ‘[r]ulers who plunged the civilised world into war must be made to pay the penalty’. It was not ‘sufficient punishment to this man that he should get away with twenty millions of money, as I see is stated, to Holland or Corfu, or wherever he goes. I think he ought to stand his trial. With regard to the question of international law, well, we are making international law, and all we can claim is that international law should be based on justice.’ Like Curzon, Lloyd George invoked the League of Nations, which was still quite embryonic, noting that it was composed of diplomats and statesmen, but that ‘this ought to be a judicial tribunal which should be set up by the Allies. Germany ought to be invited to join it, and I have no doubt she will send men, in her present state, who will judge the ex-Kaiser very impartially. There is a sense of justice in the world which will not be satisfied as long as this man is at large.’ Lloyd George insisted the Netherlands be warned that it would not be admitted to the League of Nations if it refused to surrender Wilhelm II.54

Lloyd George’s enthusiasm for Clemenceau’s proposal was not initially shared by his Cabinet colleagues. ‘It is not possible to indict a man for making war’, said William ‘Billy’ Hughes, the Australian Prime Minister. ‘But it is an indisputable fact that the ex-Kaiser has committed many crimes against international law, and for these he could be arraigned.’ This was indeed the heart of the issue that would be debated for the next eighteen months: should the Kaiser be prosecuted for the crime of starting the war, or for crimes committed in the conduct of the war, or both? Robert Borden, Canada’s Prime (p.21) Minister, took a different view, saying the Kaiser could only be tried, if at all, for ‘his crime against humanity in willing and preparing a war’. Borden said that the only appropriate place would be an international tribunal. He also described as futile an attempt to conduct a trial while the Kaiser was in the sanctuary of a neutral country. ‘It is important to consider whether we can ensure his delivery by the Dutch Government to the Allies’, said Borden. ‘It is worthwhile thinking what we should have done with him if he had surrendered to the British, as Napoleon did. Reference to the Attorney General’s Committee of Enquiry should be as broad as possible. The exact phrasing can be left to the Prime Minister and to Lord Reading. They should consider the constitutional powers of the Kaiser as to declaring war.’55

Churchill was also hesitant. He seemed to have a soft spot for the Kaiser. Writing more than a decade later in Colliers magazine, when he was himself in the political wilderness, Churchill accused Lloyd George of pushing for trial ‘to gratify the passions of victorious crowds. He would have redraped this poor bedraggled fugitive in the sombre robes of more than mortal guilt and of superhuman responsibility and led him forth to a scaffold of vicarious expiation.’56 Churchill was less inclined to such hyperbole in Cabinet meetings. ‘It will be difficult to say that the ex-Kaiser’s guilt is greater than that of many of his advisers, or greater than that of the Parliament of the nation which supported him in making war’, he cautioned the Cabinet at the 20 November 1918 meeting. ‘It might be that after an indictment has been laid against the ex-Kaiser it would be found that it could not be sustained. A serious impasse would be created. The question should be looked at very carefully before the Government commits itself to any decision.’57 Churchill cited these words in The World Crisis, where he expressed concern that hanging the Kaiser ‘was the best way to restore at once his dignity and his dynasty’.58

Lord Reading, Ambassador to the United States at the time, had mixed views. ‘The Government should know exactly what it proposes to do, and whether it is feasible to prosecute the ex-Kaiser at all’, he told the War Cabinet. ‘Legal opinion should be taken as to the charges on which he could be indicted, the procedure that should be followed, and the possibility of his being handed over by the Government of Holland for trial.’ Arthur Balfour, the Secretary of State for Foreign Affairs, thought the Crown Prince should also be tried. ‘It will be difficult to prove that the son is anything but subordinate to the father’, he said. ‘And there are other cases of men who have committed the greatest cruelties. I have in mind the Turkish leaders, Talat Pasha and Enver (p.22) Pasha. It is my hope that the Imperial War Cabinet can take up these cases at a future date.’59

‘I truly regret any hesitation here with regard to trying the ex-Kaiser for high treason against humanity’, said Lloyd George as the discussion concluded. ‘This case is entirely different from that of Napoleon, who not only showed great talent and power, but himself fought with his own troops. The ex-Kaiser is a man of no strength of character, who has shown himself to be a coward who ran away at the first hint of trouble.’60 The Cabinet agreed to ask the Law Officers of the Crown to examine the question of charging the former Emperor, as well as the former Crown Prince, ‘for the crime against humanity of having caused the war’ and ‘for offences, by one or both, against international law during the war’, with the purpose of ‘bringing home to one or both the responsibility for the acts charged’. They were also ‘to consider the constitution of a tribunal to try the charges framed’ and, together with the Foreign Office, ‘the practicability of inducing the Dutch Government to hand over the ex-Emperor and the Crown Prince to such a tribunal for trial’.61

Notes:

(1.) Lothar Reinermann, ‘Fleet Street and the Kaiser: British Public Opinion and Wilhelm II’ (2008) 26 German History 469

(2.) Annie Deperchin, ‘The Laws of War’, in Jay Winter (ed.), The First World War, Vol. I, Cambridge: Cambridge University Press, 2014, pp. 615–38, at pp. 629–30

(3.) Isabel V. Hull, A Scrap of Paper: Breaking and Making International Law During the Great War, Ithaca, NY: Cornell University Press, 2014, pp. 16–50

(4.) T. G. Otte, July Crisis, The World’s Descent into War, July 1914, Cambridge: Cambridge University Press, 2014, p. 495

(5.) Rapports sur la violation du droit des gens en Belgique, Vol. I, Paris and Nancy: Berger-Levraut, 1916; Violation of the Rights of Nations and of the Laws and Customs of War in Belgium, Reports of the Official Commission of the Belgian Government, London: HMSO, 1915.

(6.) Rapports et procès-verbaux d’enquête de la commission instituée en vue de constater les actes commis par l’ennemi en violation du droit des gens (Décret du 23 septembre 1914), Paris: Imprimerie nationale, 1915–1919

(7.) Report of the Committee on Alleged German Outrages, London: HMSO, 1915, p. 38

(8.) John Horne and Alan Kramer, German Atrocities, 1914: A History of Denial, New Haven, CT and London: Yale University Press, 2001, pp. 232–7; John Horne and Alan Kramer, ‘German “Atrocities” and Franco-German Opinion, 1914: The Evidence of German Soldiers’ Diaries’ (1994) 66 Journal of Modern History 1; Lothar Wieland, Belgien, 1914: Die Frage des belgischen ‘Franktireurkrieges’ und due deutsche öffentliche Meinung von 1914 bis 1936, Frankfurt: Peter Lang, 1984; Jeff Lipkes, Rehearsals: The German Army in Belgium, 1914, Leuven: Leuven University Press, 2007; Ruth Harris, ‘The “Child of the Barbarian”: Rape, Race and Nationalism in France during the First World War’ (1993) 141 Past & Present 170; Isabel V. Hull, A Scrap of Paper: Breaking and Making International Law During the Great War, Ithaca, NY: Cornell University Press, 2014.

(9.) James Brown Scott, ‘The Case of Captain Fryatt’ (1916) 10 American Journal of International Law 865; James F. Willis, Prologue to Nuremburg, The Politics and Diplomacy of Punishing War Criminals of the First World War, Westport, CT and London: Greenwood Press, 1982, pp. 27–32.

(10.) Edgard Troimaux, ‘Conseil de guerre, Deux pillards condamnés à mort’, Echo de Paris, 5 October 1914, p. 2

(11.) ‘Affaire Vogelgesang’ (1915) 42 Journal du droit international 54

(12.) William Loubat, ‘Des sanctions pénales du droit de la guerre’, Le Temps, 28 April 1915, p. 1. Also, André Weiss, ‘Des sanctions pénales du droit de la guerre’, Le Temps, 2 May 1915, p. 1.

(13.) Convention relative to the Treatment of Prisoners of War, (1931) 118 LNTS 343, Arts 65–6.

(14.) James F. Willis, Prologue to Nuremburg: The Politics and Diplomacy of Punishing War Criminals of the First World War, Westport, CT and London: Greenwood Press, 1982, pp. 49–50

(15.) Letter from Vice-President of the League to the Prime Minister, 24 March 1917, FMAE A/64, A-1025-3.

(16.) W. A. B., ‘Hugh H. L. Bellot, D. C. L.’ (1928) 14 Transactions of the Grotius Society, Problems of Peace and War, Papers Read before the Society in the Year 1928 xi; J. H. Morgan, ‘The Late Hugh Bellot, An Appreciation’ (1928) 14 Transactions of the Grotius Society, Problems of Peace and War, Papers Read before the Society in the Year 1928 xv.

(17.) Hugh H. L. Bellot, ‘War Crimes: Their Prevention and Punishment’ (1916) 2 Problems of the War, The Grotius Society, Papers Read before the Society in the Year 1916 31, at p. 51

(18.) ‘Proposition de constitution d’une Haute Cour de justice des Alliés pour statuer sur les crimes et attentats des ennemis au cours de la guerre’ (1917) 44 Journal du droit international 1121

(19.) ‘Germany and the Laws of War’, Edinburgh Review, October 1914, pp. 278–97

(20.) 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. 5

(21.) ‘German Barbarities, Punishment after the War’, The Times, 15 May 1915, p. 5

(22.) ‘Lusitania Outrage, Verdict of Wilful and Wholesale Murder’, The Irish Times, 11 May 1915, p. 5; ‘Jury’s Striking Verdict’, The Times, 11 May 1915, p. 9.

(23.) Hugh H. L. Bellot, ‘War Crimes: Their Prevention and Punishment’ (1916) 2 Problems of the War, The Grotius Society, Papers Read before the Society in the Year 1916 31, at p. 43

(24.) ibid. p. 46.

(25.) Reparation for Acts of Devastation by German Army during withdrawal. Note by Mr Balfour covering note by French Ambassador, 11 September 1918, TNA CAB 24/64/25 (emphasis in the original).

(26.) Minutes of a Meeting of the War Cabinet, 10 Downing Street, 20 September 1918, 12 noon, TNA CAB 23/7/28.

(27.) Memorandum by the Secretary of State for Foreign Affairs, 8 October 1918, TNA CAB 24/66/31.

(28.) ‘Communiqué du government français à la Presse, 5 October 1918’ (1918) 45 Journal du droit international 1618; Jean Graven, ‘La première tentative consecutive à la guerre mondiale de 1914–1918’, in Julius Stone and Robert K. Woetzel (eds), Towards a Feasible International Criminal Court, Geneva: World Peace through Law Centre, 1970, pp. 96–103, at p. 97.

(29.) Journal official de la République française, 16 October 1918, Sénat, p. 706; (1918) 45 Journal du droit international 1623, at pp. 1628–9.

(30.) F. E. Smith and Gordon Hewart to Lloyd George, 30 September 1918, TNA CAB 24/66/56.

(31.) ‘Sees Difficulties in President’s Plan’, New York Times, 12 January 1918, p. 3; William Camp, The Glittering Prizes: A Biographical Study of F.E. Smith, First Earl of Birkenhead, London: Macgibbon & Kee, 1960, pp. 108–9. The speech is reproduced in F. E. Smith, The Speeches of Lord Birkenhead, London: Cassell, 1929, pp. 93–115.

(32.) ‘Punishment of Enemy Criminals’, The Times, 19 September 1918, p. 3

(34.) ‘The Attorney General’s Address’, in First Interim Report from the Committee of Enquiry into Breaches of the Laws of War, 13 January 1919, TNA CAB/24/111, pp. 6–11, at p. 7.

(35.) ibid. See also ‘German Crimes, Responsibility and Punishment’, The Times, 8 November 1918, p. 7.

(36.) Meeting of the War Cabinet and Imperial War Cabinet, 10 Downing Street, 5 November 1918, 12.30 P.M., TNA CAB/23/37/36, p. 3.

(37.) C. E. Caldwell, Field Marshall Sir Henry Wilson: His Life and Diaries, Vol. 2, London: Cassell, 1927, p. 149

(38.) Seth P. Tillman, Anglo-American Relations at the Paris Peace Conference of 1919, Princeton: Princeton University Press, 1961, p. 63

(39.) Vittorio Emanuele Orlando, ‘On the Aborted Decision to Bring the German Emperor to Trial’ (2007) 5 Journal of International Criminal Justice 1015, at p. 1025. Also, Vittorio Emanuele Orlando, Memorie (1915–1919), Milan: Rizzoli, 1960; Vittorio Emanuele Orlando, Scritti varii di diritto publicco e scienza politica, Milan: Giuffrè, 1940, pp. 95ff; Vittorio Emanuele Orlando, Raccolta di scritti di diritto pubblico in onore di Giovanni Vacchelli, Vita e pensiero, Milan: Università Catolica del Sacro Cuore, 1938, pp. 337ff.

(40.) A. de Lapradelle and F. Larnaude, Examen de la responsabilité pénale de l’Empereur Guillaume II d’Allemagne, Paris: Imprimerie nationale, 1918; (1919) 46 Journal du droit international 131; Recueil des actes, pp. 10–28. An English-language version of the report is an annex to the minutes of the first meeting of the Commission on Responsibilities: 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.

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

(42.) ibid.

(43.) Leonard Mosley, Curzon, The End of an Epoch, London: Longmans, 1960, pp. 186–7

(44.) David Lloyd George, Memoirs of the Peace Conference, New Haven, CT: Yale University Press, 1939, p. 55

(45.) David Lloyd George, Memoirs of the Peace Conference, New Haven, CT: Yale University Press, 1939, p. 54

(46.) Maurice Hankey, The Supreme Control at the Paris Peace Conference 1919: A Commentary, London: George Allen & Unwin, 1963, p. 13

(47.) Winston S. Churchill, Great Contemporaries, London: Putnam, 1937, p. 288

(48.) Winston S. Churchill, The World Crisis: The Aftermath, 1918–1922, Vol. IV, London: Bloomsbury, 2015, pp. 18–19A Woman of No Importance

(49.) G. Bennett, British Foreign Policy during the Curzon Period, 1919–24, London: Springer, 1995, p. 1

(50.) David Lloyd George, Memoirs of the Peace Conference, New Haven, CT: Yale University Press, 1939, pp. 56–7

(51.) 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

(52.) David Lloyd George, Memoirs of the Peace Conference, New Haven, CT: Yale University Press, 1939, pp. 56–7

(54.) David Lloyd George, Memoirs of the Peace Conference, New Haven, CT: Yale University Press, 1939, p. 57

(55.) Robert Borden, Robert Laird Borden: His Memoirs, London: Macmillan, 1938, p. 868

(56.) Winston S. Churchill, ‘The Truth about the Ex-Kaiser’, Colliers, 25 October 1930, pp. 16, 42–6, at p. 45

(57.) Meeting of the Imperial War Cabinet, 10 Downing Street, 20 November 1918, 12 noon, TNA CAB/23/37/37, p. 6.

(58.) Winston S. Churchill, The World Crisis: The Aftermath, 1918–1922, Vol. IV, London: Bloomsbury, 2015, p. 18

(59.) Meeting of the Imperial War Cabinet, 10 Downing Street, 20 November 1918, 12 noon, TNA CAB/23/37/37, p. 6.

(61.) ibid.; David Lloyd George, Memoirs of the Peace Conference, New Haven, CT: Yale University Press, 1939, pp. 57–8.