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International Law and the Use of Force by States$

Ian Brownlie

Print publication date: 1963

Print ISBN-13: 9780198251583

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198251583.001.0001

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First World War. The Versailles and Other Treaties: War Guilt and Reparations

First World War. The Versailles and Other Treaties: War Guilt and Reparations

Chapter:
(p.51) Chapter III First World War. The Versailles and Other Treaties: War Guilt and Reparations
Source:
International Law and the Use of Force by States
Author(s):

Ian Brownlie

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198251583.003.0003

Abstract and Keywords

In the period of the First World War and of the peace settlement and conferences of 1919–20, there were several indications of the development of increased sensitivity on the part of states to the use of force. The penalties clauses and reparations arrangements in the Versailles and other peace treaties made a significant literature on war guilt and the question of personal responsibility for acts of national policy. The question of responsibility for unjustified resort to war had become an issue which concerned ministries and statesmen; it was no longer the preserve of pacifists and idealists.

Keywords:   First World War, Versailles, peace treaties, war guilt, reparations, national policy

IN the period of the First World War and of the peace settlement and conferences of 1919–20 there were several indications of the development of increased sensitivity on the part of states to the use of force. The dramatic results of the failure to maintain peace by a system of alliances, the geographical extent of the war and the enormous loss of life, the chaos which followed, all these tended to create a climate favourable to a new approach. During the currency of the war numerous peace plans appeared1 and the creation of the League of Nations was an integral part of the peace settlement.2 There was a determined attempt to give legal content to the concept of war-guilt. Publicists and politicians discussed the problem.3 The concept had a long but not continuous history and trials of individuals for war guilt occurred in antiquity.4 The more modern precedents available in 1919 were not of great value. After Napoleon's escape from Elba the Great Powers declared, on 13 March 1815, that he had incurred public vengeance ‘as an Enemy and Disturber of the tranquillity of the World’ and made an alliance to remove the danger. After his surrender the British government decided to banish him to St. Helena and on 2 August 1815 the Powers made a treaty with Great Britain authorizing his imprisonment. There was no question of trial for responsibility for waging war, the imprisonment was a preventive measure with the object of preserving the peace.5 Bismark at one point planned to set up an international tribunal to try Napoleon III for provoking the Franco-Prussian war.6

(p.52) In the discussions at the Peace Conference the concept of responsibility for declaring or taking part in a war of aggression appeared in several contexts. It provided the moral basis for the exacting and estimation of reparations.1 In the discussion of peace conditions the responsibility of the various Central Powers was referred to in justifying obligations imposed on those Powers.2 The reply of the Allied and Associated Powers to the Bulgarian Delegation at the Peace Conference, dated 3 November 1919, is a good instance of this approach, and the following passage appears in the notes appended to the reply:

Bulgaria will undoubtedly have heavy liabilities to bear. These will not, however, be the result of the Conditions of Peace, but of the war of aggression in which she voluntarily took part … in a spirit of domination and conquest. Bulgaria has failed in a scheme undertaken contrary to the law of nations and of liberty, in the hope of illicit territorial and material gains.3

The most publicized attempt to apply the concept was the plan for the imposition of individual criminal responsibility on those persons who were the ‘authors of the war’. A Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties was created in pursuance of a decision of a Plenary Session of the Preliminary Peace Conference on 25 January 1919. The Commission presented its report to the Peace Conference on 29 March 1919.4 Responsibility for causing the war was found to be on the Central Powers and their Allies, Turkey and Bulgaria. The war was planned by these Powers, all attempts at conciliation were avoided, and incidents were arranged in order that some provocation could be alleged.5 Germany and Austria—Hungary had also deliberately violated the neutrality of Belgium and Luxembourg which they themselves had guaranteed by treaty.6 The responsibility was increased, with regard to both France and Serbia, by the violation of their frontiers before the declaration of war.7 But the Commission did not consider that (p.53) these actions could be the subject of penalties inflicted by an international tribunal.1 They also stated in the ‘Conclusions’:2 ‘4. It is desirable that for the future penal sanctions should be provided for such grave outrages against the elementary principles of international law.’

The recommendations of the Commission were not adopted by the Peace Conference and in the Treaty of Peace Article 227 provided as follows:

The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties.

A special tribunal will be constituted to try the accused.…

In its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality.…

The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex-Emperor in order that he may be put on trial.3

This essay in positive morality with its undertone of vengeance was to prove embarrassing.4 In so far as it attempted to introduce morality into a new sphere it was courageous but not in harmony with the spirit of the time. In so far as it was openly based on motives of international policy, it was open to the charge that there was no due process of law. The act of state doctrine5 was still all pervading and, moreover, the process could be viewed as an attempt to convict a state in the person of its titular head. A Committee of the Italian Chamber of Deputies6 and the German delegation at the Peace Conference,7 emphasized the lack of any legal basis for the trial. The Allied reply of 16 June 1919 to the (p.54) observations of the German delegation stated that ‘the public arraignment under Article 227 framed against the German ex-Emperor has not a juridical character as regards its substance but only in its form. The ex-Emperor is arraigned as a matter of high international policy, as the minimum of what is demanded for a supreme offence against international morality, the sanctity of treaties and the essential rules of justice’1

Difficulty was experienced by the Allied governments in finding a legal formula for the request to the Dutch government for extradition.2 The Dutch government refused to extradite the Kaiser and exchanges on the subject of his extradition and concerning a safe place of residence and internment continued for many months without result.3 Thus the Kaiser was not brought to trial but in the legal developments of the years 1943 to 1946 Article 227 was to have some value as a precedent.4

The penalties clauses and reparations arrangements in the Versailles and other peace treaties stimulated a considerable literature on war-guilt and the question of personal responsibility for acts of national policy.5 The factual aspects of responsibility for the war were investigated and various states began to publish diplomatic correspondence and open their archives.6 The question of responsibility for unjustified resort to war had become an issue which concerned ministries and statesmen; it was no longer the preserve of pacifists and idealists.

Notes:

(1) Cf. Hemleben, Plans for World Peace through Six Centuries, pp. 138–81; Lange, 13 Hague Recueil (1926, III), pp. 412–22; Oppenheim, i. 381–2; Woolf (ed.), The Framework of a Lasting Peace (1917); Wehberg, The Outlawry of War (Washington, 1931), pp. 7–9; Nippold, Die Gestaltung des Vόlkerrechts nach dem Weltkriege, 1917 (English trans., Oxford, 1923).

(2) Infra, Chapter IV, for a discussion of the League system.

(3) Otlet, Les Problèmes internationaux et la guerre (Geneva, Paris, 1916), at pp. 11–16, on ‘responsabilités de la guerre’. He discusses measures to be taken against guilty states, the exile of ‘dirigeants’, the punishment of individuals, and the end of dynasties.

(4) Supra, p. 4.

(5) See 45 A. J. I. L. (1951), p. 571; Bellot, 39 L. Q. R. (1923), p. 170; Pompe, Aggressive War: An international Crime, pp. 149–51.

(6) Moritz Busch, Bismark: Some Secret Pages of His History (New York, 1898), i. 189. Cf. Pompe, pp. 151–2.

(1) Documents on British Foreign Policy 1919–1939, First Series, ii. 162. Infra, pp. 135–9.

(2) Documents on British Foreign Policy, First Series, i. 173–4, 259 (Tardieu), 434, 526–7, 533–5; ii. 139, 156–8, 165; iv. 645, 1037 (App. A to no. 665, preamble to Doc. 1), 1047 (App. D to no. 665).

(3) Ibid., ii. 156, App. A to no. 11 at p. 162.

(4) Printed in 14 A. J. I. L. (1920), p. 95. Cf. Commission des responsabilités des auteurs de la guerre, Documentation Internationale, La Paix de Versailles, no. 3 (Paris, 1930); Historical Survey of the Question of International Criminal Jurisdiction, U. N., Gen. Ass., I. L. C., 1949, A/CN. 4/7/Rev. 1, pp. 7–8, 47.

(5) 14 A. J. I. L. (1920), pp. 98–107.

(6) Ibid., pp. 98, 107–12.

(7) Ibid., p. 98.

(1) Ibid., p. 118. The Report states that ‘a war of aggression may not be considered an act directly contrary to positive law’. At p. 120 the Commission suggests a formal condemnation by the Conference of the breaches of the neutrality of Belgium and Luxembourg in breach of treaties.

(2) Ibid., p. 120. See also pp. 138–40 for the views of the American representatives.

(3) Historical Survey, p. 60; 13 A. J. I. L. (1919), Suppl., p. 151; U. S. Treaty Series, no. 678.

(4) For discussion from the legal point of view: Lapradelle and Larnaude, report, to the Peace Conference, in 46 J. D. I. (1919), p. 131; Jellinek, ibid., p. 162; Simons, ibid., p. 953; Mérignhac, R. D. I, légis. comp., 3rd ser. (1920), p. 35. Cf. literature cited by Neumann, 45 A. J. I. L. (1951), p. 495, n. 4.

(5) This doctrine has several forms. In this work it represents the assumption that individuals cannot be responsible under international law (i.e. criminally responsible) for acts committed as agents (as Head of State, members of a government, or otherwise in an official capacity) of a sovereign state. See Wright, 41 A. J. I. L. (1947), pp. 70–71 and infra, pp. 151–7, 164–6, 169, 170 seq.

(6) Docs. on British Foreign Policy, 1919–1939, First Series, i. 698.

(7) Temperley (ed.), A History of the Paris Peace Conference (London, 1920), ii. 304: German observations of 29 May 1919.

(1) See Misc. no. 4 (1919), cited Wright, History of U. N. W. C. C., p. 240 and in Temperley, ii. 306. also History of U. N. W. C. C., pp. 16–17, 44, 181, 239–42.

(2) Documents on British Foreign Policy, 1919–1939, First Series, ii. 758, 797, 884, 889 (Apps. 1 and 2 to no. 73); p. 891 (App. 3 to no. 73). The Note actually sent, dated 15 Jan. 1920, says that ‘it is an act of high international policy’, ibid., p. 912 (App. B. to no. 76). Cf. the earlier attempts at extradition in 1919: ibid, v, 8 (no. 4), p. 9 (no. 5), p. 10 (no. 6), p. 12 (no. 7), p. 21 (no. 14), p. 22 (no. 15), p. 36 (no. 21), p. 83 (no. 43), p. 571 (no. 142), p. 610 (no. 163), p. 739 (no. 200), p. 928 (no. 322).

(3) Ibid., vii. 20–21, 29 (App. 3 to no. 3), 37, 42, 220–6, 423–8, 547–50, 591–3, 600 (App. 1 to no. 69), 616 (App. 1 to no. 70); and ix. 602–729, passim. See also Bulletin de lʼInst. Interméd., July, 1920; History of U. N. W. C. C., pp. 240–2.

(4) Infra, pp. 159 seq.

(5) Cf. supra, p. 53, n. 4; also Von Wegerer, A Refutation of the Versailles War Guilt Thesis (New York and London, 1930); Gohler, Freies Kriegsfuhrungsrecht und Kriegsschuld (1931); and literature cited by von Elbe, 33 A. J. I. L. (1939), p. 687, n. 168. See also Morgan, Quarterly Review, Apr. 1947, pp. 318–19.

(6) Gooch and Temperley (eds.), British Documents on the Origins of War 1898–1914; Documents diplomatiques français (1871–1914) (Paris), Ministère des Affaires Étrangéres, Ire série, 1871–1900; Oesterreich-Ungams Auβenpolitik, 1908–14, Austrian Foreign Office; Die diplomatischen Akten des Auswärtigen Amtes, 1871–1914 (Berlin); Die belgischen Dokumente zur Vorgeschichte des Weltkrieges, 1885–1914 (Berlin); Die grosse Polittk der europaϊschen Kabinette, 1871–1914 (Berlin); German Diplomatic Documents, 1871–1914 (4 vols., London) (Selections from Die große Politik).