The creation of an int’l. court responsible for trying the perpetrators of such criminals was one of the leading issues during post-war peace negotiations. However, the insistent requests by Great Britain and France were objected by the USA. Upon France’s insistence, the “Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties” was established in 1919 by the preliminary Paris Peace Conference. The commission, composed of 15 members, was to investigate the responsibility for the start of war, violations of the laws of war, and what tribunal would be appropriate for trials. In its report, the Commission proposed the prompt establishment of an international tribunal (an Allied “High Tribunal” with members from all of the allied countries) which would prosecute the heads of states and major military leaders of the Entente States.
The United States strongly opposed to the creation of such an organ, arguing that it had no precedent. The US members of the Commission were of the opinion that there was no int’l. treaty making violation of the laws and customs of war an int’l. crime. The Americans were of the view that only national states could prosecute war crimes, and that heads of states, as well as other military and political leaders enjoyed immunity from foreign prosecution (Act of State doctrine). The Americans further argued that the creation of an ad hoc tribunal would amount to ex post facto justice and violate the principle of legality. The United States strongly opposed to the creation of such an organ, arguing that it had no precedent. The US members of the Commission were of the opinion that there was no int’l. treaty making violation of the laws and customs of war an int’l. crime. The Americans were of the view that only national states could prosecute war crimes, and that heads of states, as well as other military and political leaders enjoyed immunity from foreign prosecution (Act of State doctrine). The Americans further argued that the creation of an ad hoc tribunal would amount to ex post facto justice and violate the principle of legality.The Japanese members of the Commission also doubted whether int’l. law recognized a penal law applicable to those who are guilty.Even so, the majority opined that high officials, including the Kaiser, be tried for ordering such crimes and on the basis of command responsibility.As a response, the Treaty of Versailles signed with Germany envisaged the prosecution of war criminals, by providing in Art. 229 the establishment of an int’l. tribunal which could try individuals charged with violating the laws and customs of war (int’l. military tribunals would try crimes committed against citizens of various countries). In addition, the German Emperor Wilhelm II. would be tried for the “supreme offence against international morality and the sanctity of treaties” (Art. 227 (1)).
Art. 227 (2) provided for the establishment of an int’l. tribunal composed of 5 judges in order to try the Kaiser, the person seen as the main responsible for the war. Art. 227 (2) provided for the establishment of an int’l. tribunal composed of 5 judges in order to try the Kaiser, the person seen as the main responsible for the war.However, such international court could never be established. Wilhelm II, had fled to the Netherlands and was never extradited by that State on technical legal grounds (the offence being a “political” one).As for the other suspects, Art. 228 of the Treaty of Versailles also provided, in addition to the establishment of int’l. military courts, for prosecutions of German nationals for war crimes before Allied courts, including mixed commissions where the victims came from more than one state. These provisions were also not put into practice.Although the German State had undertaken an obligation to surrender them by virtue of Art. 228 (2) of the Versailles Treaty, the list of war criminals prepared by the Allied States caused outrage in Germany and the Germans were determined not to surrender the persons in question.The German Government, to ensure national stability, proposed that the prosecutions be conducted by Germany, a proposal which was eventually accepted. So the process ended in the infamous “Leipzig Trials”, with trials held before the German Reich Supreme Court, and charges based on German criminal law. This resulted in the “mockery of justice” we have mentioned before.
As for the prosecution of Ottoman leaders, France, Great Britain and Russia had issued a joint declaration on the 24th May, 1915, stating that the crimes committed against the Armenian population constituted crimes against humanity and civilisation, and that “they will hold personally responsible [for] these crimes all members of the Ottoman Government and those of their agents who are implicated in such massacres”. As for the prosecution of Ottoman leaders, France, Great Britain and Russia had issued a joint declaration on the 24th May, 1915, stating that the crimes committed against the Armenian population constituted crimes against humanity and civilisation, and that “they will hold personally responsible [for] these crimes all members of the Ottoman Government and those of their agents who are implicated in such massacres”. However the prosecution of Ottoman leaders was particularly controversial due to the fact that the Armenians were part of the Empire’s own population, and the widespread view at the time was that acts perpetrated against its own people by a State were purely an internal affair and could not constitute war crimes.
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