As we have seen, the Moscow Statement (which does not deal with the Japanese because Russia is not at war with Japan) proclaims that, after the armistice, the German war criminals will be returned to the scenes of their crimes for trial and punishment by local courts. In translating this declaration into action after the war, the United Nations may encounter some complex problems.

Let us, for example, see what was done after the last World War. What is the history of the action taken against war offenders under the Treaty of Versailles? On January 25, 1919 the Preliminary Peace Conference set up a Commission of Fifteen to study the violations of international law chargeable to Germany and her allies. The Commission’s majority report declared that a belligerent may try enemy persons charged with violations of the laws and customs of war, and for this purpose it may set up its own military or civil courts and use its own trial procedure. Most of the war crimes were therefore to be tried in the military tribunals or ordinary criminal courts of the injured nation.

The Commission declared, however, that four types of charges called for trial before an international tribunal: (1) offenses against civilians and soldiers of the Allied nations, such as outrages in prison camps; (2) offenses by “persons of authority ... whose orders affected the conduct of operations” against the Allied armies; (3) offenses by civil or military authorities, “without distinction of rank,” who either ordered or “abstained from preventing ... violations of the laws or customs of war”; and (4) charges against sundry other persons, belonging to enemy countries, whom—having regard for the character of the offense or limitations of the law of the injured state—it might be advisable to prosecute in an international court.

For these four classes of cases, the Commission recommended that a “High Tribunal” be set up, the judges appointed by the Allied governments. This court could determine its own procedures and apply “the principles of the law of nations as they result from the usages established among civilized peoples, from the laws of humanity and from the dictates of public conscience.” Punishments could be imposed in accordance with what is customary “in any country represented on the tribunal or in the country of the convicted person.”

The Versailles Treaty

These recommendations of the Commission of Fifteen were, however, not adopted by the Peace Conference. Objections were raised, especially by the American and Japanese members of the Commission. The Americans disapproved of the creation of an international criminal court, “for which,” they said, “a precedent is lacking, and which appears to be unknown in the practice of nations.” They also rejected the doctrine that failure to prevent violations of the laws and customs of war is a criminal act. The Americans and Japanese particularly disliked the idea that, if the Commission’s recommendations were carried out, the head of a state, such as the Kaiser, could be brought before a court set up by his enemies.

And so, instead of following the majority views of the Commission of Fifteen, a milder approach toward war criminals was taken in the Treaty of Versailles. No provision was made for an international criminal court except that Article 227 provided for a “special tribunal” to try the former Kaiser. This tribunal was to be composed of five judges, one each to be appointed by the United States, Great Britain, France, Italy, and Japan. Since Holland refused to extradite him, the tribunal was never set up. By Article 228, however, the German government recognized the right of the Allies “to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war.” The German government undertook to hand over the accused to the Allied governments.

Article 229 provided for the trial of the accused before military tribunals of the nations where their alleged crimes were committed. Every defendant was to be permitted to name his own counsel.

By Article 230 the German government undertook to furnish all the documents and data relevant to the trials.

The Lists of Accused

Accordingly, lists of war criminals were made up by each of the principal Allied governments, from which a joint sample list of about 900 names was handed to the Germans on February 3, 1920. France demanded the surrender of 334 persons, among them the Crown Prince, Marshal von Hindenburg, Count Bismarck (grandson of the Iron Chancellor), and General Stenger, who was accused of having ordered his men to massacre all prisoners, including the wounded.

The British claimed 100 Germans, among them Grand Admiral von Tirpitz and Admiral Scheer, for having ordered submarines ruthlessly to sink Allied ships, and some 20 former commandants of German prison camps, for extreme cruelty.

Belgium called for the delivery of 265 Germans, including ex-Chancellor von Bethmann-Hollweg, allegedly responsible for the violation of Belgium’s neutrality. Poland, Romania, Italy, and Yugoslavia also demanded the surrender of many high-placed offenders—for murder, arson, theft, pillage, wanton destruction, bombardment of open towns, and similar offenses.

Although, in signing the Treaty of Versailles, the German government obligated itself to deliver up the accused, it soon refused to do so. In Germany, feeling ran high when the Allied list was published. Mass meetings of protest were held and everywhere the surrender of the war criminals was denounced.

On January 25, 1920—even before the list of 900 was presented—Germany had proposed, as a compromise, that all persons charged by the Allies with war crimes and misdemeanors should be tried before the Supreme Court of the Reich at Leipzig. As evidence of its determination to punish its own people, the German government declared that it had brought about the passage of a law on December 13, 1919 providing for the prosecution of war offenders.

After an exchange of many diplomatic notes, the Allies in May 1920 agreed to deliver to the Germans a sample list of 45 war criminals for trial at Leipzig. To this list the British contributed only 7 selected names.

The Leipzig Trials

At last the trial of the war criminals began at Leipzig on May .23, 1921—two and a half years after the Armistice The duty of trying their own countrymen fell upon the seven judges of the Criminal Senate of the German Imperial Court of Justice.

Many of the accused could allegedly not be found by the Germans. For example, the whereabouts of Commander Patzig—whose U-boat had torpedoed the British hospital ship Llandovery Castle without warning and had then fired upon and sunk lifeboats containing the survivors—was said to be unknown, although he had an address in Danzig. His lieutenant commander could not be traced at all, while another officer had taken refuge in Poland. In connection with the Llandovery Castle atrocity only Lieutenants Ludwig Dithmar and John Boldt were put on trial—on the initiative of the German government.

Others who were tried included General Stenger, accused of ordering the massacre of prisoners, and Captain Emil Muller, charged with maintaining such bad conditions at his prison camp that hundreds of men died.

Altogether 12 men were tried at Leipzig—2 on German charges, 4 on British, 5 on French, and 1 on Belgian. Of these 12 men, 6 were convicted. The sentences imposed included: on German charges, 2 of four years; on British charges, 2 of six months and 1 of ten months; on French charges, 1 of two years. The French case involved a German major prosecuted for killing wounded French war prisoners, allegedly on General Stenger’s orders. The General himself was acquitted despite much evidence against him by German witnesses. Crowds applauded his acquittal and admirers gave him flowers.

The Allied mission sent to Leipzig withdrew in protest against the outcome of the 12 cases. The French particularly were angered and saddened; they and the Belgians, who had suffered most from German atrocities, indignantly withdrew the documents of accusation and proof. To them, the trials were clearly a miscarriage of justice. On the other hand, certain prominent British observers thought that the German court had done a fairly good job under great handicaps.

After the Allied observers had left Leipzig, some 800 other cases of war crimes came to the attention of the German Court, but the German authorities disposed of all of them by discontinuing the proceedings, usually on the grounds of insufficient evidence.

In January 1922 a Commission of Allied jurists, set up to inquire into the business, unanimously declared that it was useless to let the Leipzig court continue and recommended that the German government be compelled to hand over the accused persons for trial by the Allies under Article 228 of the Versailles Treaty. German groups, however, organized protest meetings at which high-ranking German officers reminded the Allies that “250,000 soldiers and the police of the Reichswehr” were ready to prevent the handing over of Germans to the “justice of the Entente.”

It is significant to note that of the 6 men convicted, the 2 with the longest terms soon escaped from the house of detention (not a prison) under suspicious circumstances. Thus ended the fiasco of bringing the German war criminals to trial.

Lessons of Leipzig

What are the lessons learned from the Leipzig trials?

First, we cannot trust the enemy to bring his own nationals to justice.

Second, surrender of the leading malefactors might be made one of the conditions of the armistice at the end of World War II.

Third, the men accused of war crimes should be tried as soon as possible. Otherwise witnesses will almost certainly disappear or die off and evidence will be lost.

Fourth, most of the preparation for the trials should be handled by United Nations officials.

Fifth, fair yet not long-drawn-out proceedings should be held.

Sixth, public opinion in enemy countries should be prepared to recognize the justice of punishing leaders who are guilty of shocking crimes.

Finally, the Leipzig trials and their aftermath show that in the difficult business of dealing with war criminals the United Nations must be truly united and of one opinion. Disagreement among the Allies encouraged the Germans to resist the Allied demands for the criminals.

The Leipzig trials bring up certain legal questions which we need to consider here. Under what law, for instance, shall the United Nations proceed in dealing with war criminals? In what courts should they be tried? How shall a soldier’s defense—that he committed atrocities only in obedience to his superior’s orders-be treated?

Can chiefs of state, like Hitler, be legally tried and punished? How shall the accused be got hold of and the guilty punished? What steps shall be taken now to ensure the successful application of justice at the end of the war?

Let us take up the first question first.

“I have repeatedly said that unconditional surrender gives the enemy no rights, but it relieves us from no duty. Justice will have to be done and retribution will fall upon the wicked and cruel. Miscreants who set out to subjugate first Europe and then the world must be punished. So must their agents who in so many countries have perpetrated horrible crimes. They must be brought to face the judgment of the populations they have outraged to the very scenes of their atrocities.” (Prime Minister Churchill, May 25, 1944.)

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