After the last war, one of the major questions in dealing with war criminals was the responsibility of chiefs of state—particularly the Kaiser—for the atrocities committed by their subjects.

Article 227 of the Versailles Treaty charged the former Emperor William II “with a supreme offense against international morality and the sanctity of treaties.” The Allies wanted to put the Kaiser on trial, but he had renounced the throne shortly before the Armistice and fled to Holland. The Dutch refused to give him up.

Will the same thing happen to Hitler or Tojo or their henchmen? Indeed, what is the status, under the law of nations, of a chief of state? Is Hitler—the Führer in whose name and upon whose authority so many of the Nazi crimes have been committed—to be pursued “to the ends of the earth,” as the Moscow Statement says, and brought to trial?

After the last war, not all authorities agreed that chiefs of state were punishable as war criminals.

The French accused the Kaiser of being fundamentally responsible for the atrocities committed by the generals and others under him. “It was necessary,” they said, “to go beyond the individual, the actual author of the act complained of; it was necessary to search for the chiefs; from chief to chief. ... In the German Army there is one supreme chief, the Emperor. Let us know, for example, whether the act of General Stenger, who was accused of having issued a proclamation ordering his troops to give no quarter, was ever disavowed. We do not know whether it was so or not; but it is certain that this proclamation reached, the ears of the Kaiser and it is he who is responsible.” The Kaiser, of course, “did not give directly all the barbarous orders issued by his generals, but the latter knew that their acts had his approval; they were only the executors, high or low, of measures decreed by their master who felicitated, decorated, or promoted those who distinguished themselves by their ferocity.”

So argued the French. The American members of the Commission of Responsibilities thought differently. They “admitted that from the moral point of view the head of a state, be he termed emperor, king or chief executive, is responsible to mankind, but ... from the legal point they expressed themselves as unable to see ... that the head of a state exercising sovereign rights is responsible to any but those who have confided those rights to him by consent, express or implied.” According to this view, the heads of states are responsible only to their people and should not be made responsible to any other nation.

In the light of subsequent events some people challenge this American opinion and endorse the French view for the following reasons: The immunity granted a chief of state by other nations has nothing to do with the immunity he may enjoy inside his own country. It is based only on international courtesy, and this courtesy depends on whether the sovereign in question conducted himself as a law-abiding and trustworthy chief of state. By invading neighboring countries, by violating treaties, and by exterminating masses of human beings without cause, a sovereign loses, according to those who hold this view, any immunity he might claim under international law.

Unless the doctrine of immunity is so interpreted, it is argued, the most brutal and aggressive ruler would always be protected. If he won the war, he would not only escape punishment but deal roughly with the losers. If he lost it, he would always be sure to save his own skin. Since prisoners of war are subject to trial for violating the laws and customs of war, why should rulers who can be made prisoners of war get away scot-free? Moreover, would it be just to punish underlings who were forced to carryout illegal orders and yet spare the leader who deliberately planned and ordered wholesale atrocities?

It seems to many people that the Allies made a serious mistake at the end of the last war by not formally accusing the ex-Kaiser of the crimes of murder, robbery, kidnaping, and the like. Had they done so, Holland’s legal position for refusing to extradite William II on the ground that he was only a political refugee would have been far less secure.

To set an example of fair and just proceedings the United Nations must, it seems to many students of the problem, subject Hitler and other Axis chiefs of state to trial by an international criminal court.

What Lord Birkenhead, attorney general of England, said of the Kaiser might be said of Hitler: “If this man escapes, common people will say everywhere that he has escaped because he is an Emperor [chief of state]. In my judgment they will be right. ... It is not desirable that such things should be said, especially in these days. It is necessary for all time to teach the lesson that failure is not the only risk which a man possessing at the moment in any country despotic powers, and taking the awful decision between Peace and War, has to fear. ... If ever again that decision should be ... at the disposition of an individual, let the ruler who decides upon war know that he is gambling, amongst other hazards, with his own personal safety.”

From EM 11: What Shall Be Done with the War Criminals? (1944)