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Published online by Cambridge University Press: 03 February 2020
The conventional historic account maintains that international criminal law (ICL) was ‘born’ after the Second World War. This account is incomplete, as William Schabas's book, The Trial of the Kaiser (2018), captivatingly shows by richly portraying the (aborted) First World War initiative to try the German Kaiser before an international tribunal. However, this article (after providing an overview of Schabas's book) argues that Schabas's account of a First World War ICL ‘birth’ is also incomplete. ICL during the First World War era was but one link in a much longer historical chain. The essay demonstrates this fact by presenting certain elements of the long (forgotten) history of ICL, which provide answers to questions that have been left unanswered, not only by the conventional account (of a Second World War ICL ‘birth’) but also by Schabas's account (of a First World War ICL ‘birth’). As the article discusses, the unveiling of a greater ICL history indicates that international criminal tribunals are not a modern innovation, and reveals the origins of ‘crimes against humanity’, of ‘aggression’ and of the universal jurisdiction doctrine. The essay further discusses reasons for the non-remembrance of the long history of ICL, the importance of acknowledging that history, and the likelihood of it becoming widely acknowledged in the near future.
I wish to thank Lena Bohrer, Gabriel Lanyi, Benedikt Pirker, Yaël Ronen and Ruth Sanders.
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18 Allan Sherman, Peter and the Commissar (RCA Red Seal Record 1964), https://youtu.be/w9tnOWAillk (minute 3:18–3:23 of the recording: ‘… we have all heard the saying, which is true as well as witty that a camel is a horse designed by a committee’). Note that while the phrase is commonly attributed to Sherman, this recording implies that it is older.
19 The council, consisting of the American, British, French and Italian heads of state, was unofficially referred to as the Conseil des Vièrges (the Council of Virgins). As Schabas explains: ‘The inspiration [for that name] was a popular French novel, entitled Les demi-vièrges, by Marcel Prévost, published in 1894. It was premised on the preposterous idea that Heads of State had virgin minds’: Schabas (n 1) 175.
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93 Note that during the Reformation Era, the tyranny doctrine was gravely abused in numerous cases out of sectarian motivations. Yet, this abuse should not lead us to disregard that doctrine as a legal norm. The fact of the matter is that the doctrine was not abused in all cases. Moreover, the reasoning presented, when the doctrine was either used or abused, was increasingly non-sectarian, which gradually paved the way (along with many other factors) to more inclusive applications of the doctrine: see Trim, David, ‘“If a Prince Use Tyrannie towards His People”: Interventions on behalf of Foreign Populations in Early Modern Europe’ in Simms, Brendan and Trim, David (eds), Humanitarian Intervention: A History (Cambridge University Press 2011) 29, 32, 38–65Google Scholar.
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98 Trim (n 89) 40. One might argue that the actions taken against these minor eighteenth century rulers, and even those attempted against King Fredrick of Prussia, are unrelated to international law, because these rulers (Fredrick included) were subject to the Holy Roman Empire. Indeed, some scholars maintain that legal practices that existed within the Holy Roman Empire are irrelevant to the history of international law. Such scholars argue specifically that the Holy Roman mechanism for the punishment of tyrannical and aggressive estate rulers – especially its continued existence during the eighteenth century – demonstrates that the Holy Roman estates had never become distinct sovereigns and that the Holy Roman Empire remained to its very end (or, alternatively, gradually became) sufficiently centralised to be considered a single sovereign. The fact that the relevant substantive prohibitions (and not only the aforesaid institutional enforcement mechanism) were enshrined in formal Holy Roman constitutional edicts, presumably, further demonstrates that the punishment of individual Holy Roman estate rulers was an internal (non-international) matter: eg, Milton, Patrick, ‘Intervening Against Tyrannical Rule in the Holy Roman Empire during the Seventeenth and Eighteenth Centuries’ (2015) 33 German History 1, 1–5CrossRefGoogle Scholar. However, this position is flawed. First, it underrates the decentralised elements of the Holy Roman structure. The Holy Roman Empire never attained a monopoly in its realm either in war- and peace-making, or in criminal lawmaking and enforcement: Wilson (n 47) 4–15, 172. Second, this position provides an oversimplified account of the Empire. The structure of the Holy Roman Empire was chronically complex and (slowly and non-linearly) ever-changing. As a result, throughout the Empire's existence (as well as ever since) a dispute has persisted over its ‘correct’ definition. Alongside (and competing with) views that defined the Empire as a single (sufficiently centralised) sovereign entity, there have always been opinions that defined it as a supranational or international entity of one kind or another. In various periods, including the eighteenth century, an internationalist definition of the Empire was the dominant view: Rech (n 97) 135–36; Wilson (n 47) 4–15. Third, the aforesaid position suffers from anachronism because it assesses the Holy Roman Empire and its estates based on a sovereignty conception that had consolidated only during the late nineteenth century (nearly a century after the dissolution of the Holy Roman Empire), according to which ‘sovereignty … could not be a matter of degree; it was an on/off affair’: Kennedy (n 46) 123. By contrast, under the sovereignty conception that was prevalent until the late nineteenth century, ‘there were many sovereigns and many types of sovereignty, which overlapped unproblematically’: Kennedy (n 46) 122–23. Thus, under the contemporaneous sovereignty conception, each Holy Roman estate was commonly considered a distinct sovereign in the ‘eyes’ of the law of nations, irrespective of whether the Holy Roman Empire (as a whole) was also considered as such: see, eg, Chisholm v Georgia 2 US 419 (1793), para 14 (US Attorney-General: ‘[In the] Germanic Empire … [t]he Princes wage war without the consent of their paramount sovereign; they even wage war upon each other; nay upon the Emperor himself … they are distinct sovereignties’); Karl Gottlob Günther, Europäisches Völkerrecht in Friedenszeiten nach Vernunft, Verträgen und Herkommen mit Anwendung auf die teutschen Reichsstände (Richtersche Buchhandlung 1792) 169 (stating that with regard both to the Holy Roman Empire ‘as a whole, as well as its individual sovereigns … the principles of international law apply between them and others, unless their link and dependence to the higher State [ie the Holy Roman Empire] requires particular limitations’); see also Verzijl, Jan HW, International Law in Historical Perspective, Vol 1 (Sijthoff 1968) 404–05Google Scholar. Moreover, only with the late nineteenth century consolidation of the aforesaid new conception of ‘sovereignty[,] would come a sharpening of distinctio[n] between … international and municipal or domestic law’: Kennedy (n 46) 119. This sharp distinction did not exist earlier. Instead, local laws, especially of a penal nature, were commonly considered local manifestations of the universal law, adapting the universal law to the unique local conditions: see above notes 41–43 and accompanying text. Accordingly, even during the seventeenth and eighteenth centuries, the legal basis for the tyranny and aggression prohibitions applied to estate rulers was not only Holy Roman constitutional edicts but also the law of nations: see Rech (n 97) 135–36 (with regard to aggression); Trossbach, Werner, ‘Power and Good Governance – The Removal of Ruling Princes in the Holy Roman Empire 1680–1794’ in Coy, Jason Philip, Marschke, Benjamin and Sabean, David W (eds), The Holy Roman Empire Reconsidered (Berghahm Books 2010) 191, 192Google Scholar (with regard to tyranny). Nevertheless, this is not to say that the Holy Roman law and law of nations fully converged: regarding some aspects of these prohibitions, the Holy Roman law added certain substantive constraints; even more significantly, the Holy Roman law established an institutional penal enforcement mechanism that did not exist elsewhere: see von Friedeburg, Robert, ‘Natural Law Jurisprudence, Arguments from History and Constitutional Struggle in the Early Enlightenment’ in Hochstrasser, TJ and Schroder, Peter (eds), Early Modern Natural Law Theories (Kluwer 2003) 141, 142Google Scholar. Yet, irrespective of its unique attributes and of contemporary awareness of those distinct facets, the aforesaid Holy Roman law was still, to a considerable degree, considered an expression of the related law of nations: eg, Rech (n 97) 135–36; von Friedeburg, ibid 142. Furthermore, because the Holy Roman law was not regarded as unrelated to the law of nations, some of its originally unique aspects gradually expanded beyond the bounds of the Empire: see Wheaton, Henry, History of the Law of Nations in Europe and America (Gould, Banks & Co 1845) 77Google Scholar (quoting Hallam: ‘The law of nations … grew out of the public law of the empire. To narrow, as far as possible, the rights of war and of conquest, was a natural principle of those who belonged to [most Holy Roman] States’); Lesaffer, Randall, ‘The Grotian Tradition Revisited: Change and Continuity in the History of International Law’ (2002) 73 British Yearbook of International Law 103, 128–37Google Scholar.
99 Bohrer (n 44) 482.
100 ibid 457–58.
101 ibid.
102 Carlyle, Thomas, History of Friedrich the Second Called Frederick the Great, Vol 5 (Clarke & Co 1890) 82Google Scholar (emphasis added).
103 Bohrer (n 44) 458–61.
104 ibid 461.
105 Declaration of the Powers against Napoleon (entered into force 13 March 1815).
106 Protocol (19 November 1818) (in French), quoted in H Hale Bellot, ‘Memorandum on the Detention of Napoleon Buonaparte’, appended to British Committee Memorandum (n 10) 364, 382 (translation for the author by Benji Grunbaum).
107 Bohrer (n 44) 405–26.
108 Bellot (n 106) 382.
109 The inaccurate account of Napoleon's case that developed during the First World War, and which has become the prevalent narrative among international lawyers, originated (to a considerable degree) from two memorandums: one British and the other American (Schabas's account of Napoleon's case is clearly influenced by these, and related sources from the First World War era: Schabas (n 1) 3–4, 9, 20–22, 38–40, 62, 274–80). The (earlier) British memorandum was written, by H Hale Bellot, for the British Committee of Enquiry into the Breaches of the Laws of War: Bellot (n 106) 365–91. Its aim was to provide support for the Committee's position that ‘[a]ssuming that … [the ex-Kaiser] is to be dealt with, two courses might be taken—he might be treated summarily and administratively without any trial, in much the same manner as Napoleon was dealt with in 1815, or he might be tried before a Tribunal such as has been suggested above. One of several objections to the former mode of treatment is that it would slur over notable differences between the two cases. Napoleon was not charged with having during the Hundred Days carried on war contrary to the usages of civilised nations. His offence, if any, was either that he was a rebel to the lawful French Government or that he had violated the arrangement agreed to by him in 1814. The moral effect of confinement or internment of the ex-Kaiser without a trial would be much less than that of proceedings in which he would be heard and, if found guilty, punished accordingly. The opinion of the majority of the members of the Committee on the whole is in favour of the second course’: British Committee Memorandum (n 10) 29–30.
Bellot's memorandum quotes sources that imply that during Napoleon's time some considered Napoleon's actions to be international crimes. Yet, the memorandum does not stress that position. Instead, it stresses the contemporary British position, which supported holding Napoleon in perpetual administrative detention (the course of action that was eventually taken). Furthermore, the memorandum does not mention the position (supported primarily, as will be discussed below, by some high-ranking Prussian officers) that Napoleon could have been tried legally in a non-French tribunal. These omissions are probably partly as a result of insufficient accessibility to sources. Notably, the memorandum's account of the contemporary Prussian position relies primarily on a book that only reproduced Gneisenau's letters to Müffling from 27 June and 29 June 1815 and not the letter written by Müffling to Gneisenau between those dates on 28 June. As will be discussed shortly, that letter of 28 June is significant as it discusses the possibility of trying Napoleon in a Prussian tribunal. It is also likely that the memorandum's omissions are, to some degree, as a result of its British orientation, which unconsciously influenced its writer, leading him to focus on the British position at the time. Moreover, there is a possible less innocent reason for the memorandum's inaccurate account (an account that stresses the differences between the Kaiser's case and that of Napoleon). Recall that although the British Committee acknowledged in its recommendations to the British government that the Kaiser could either be tried or treated administratively (like Napoleon), most committee members supported the trial option (pointing out sources other than Napoleon's case as legal bases for such a trial). Recall further that the British Committee in those recommendations stressed that ‘[o]ne of several objections to [treating the Kaiser administratively, like Napoleon] … is that it would slur over notable differences between the two cases’: British Committee Memorandum (n 10) 29. Thus, it is possible that the memorandum's omissions were intentional, aiming to convince the British government that the Kaiser's case differed considerably from that of Napoleon, thereby steering it away from following in the footsteps of its predecessors of the Napoleonic era.
The second influential memorandum from the First World War era to address Napoleon's case is an American memorandum submitted to the Commission on Responsibilities (David Hunter Miller and James Brown Scott, ‘Observations on the Responsibility of the Authors of the War and for Crimes Committed in the War’, reproduced in David Hunter Miller, My Diary and the Conference of Paris, Vol 3 (1924) 458). The discussion of Napoleon's case in the American memorandum is much shorter than that of the British memorandum (1 page versus 26 pages) and, as mentioned, it is much less accurate. Here is that American account in its entirety: ‘The treatment of Napoleon may be mentioned as the most prominent example of political action taken to restrain a monarch who may be regarded as a menace to the general peace. After Waterloo the Chamber of Deputies and the Senate deposed him and denied the right of succession to his son. He was compelled to leave Paris, and at Malmaison planned flight to America. But from June 25th the Allied generals made the delivery of Napoleon's person one of the first and most imperative terms of an armistice. In a note of July 1st, Austria, Russia and Prussia declared that for the peace of Europe Napoleon Bonaparte must be delivered up to their keeping. On July 15th the ex-Emperor surrendered himself to the English. The Convention of August 2, 1815, drawn up by the plenipotentiaries at Paris, contained the following clauses: 1. Napoleon Bonaparte was the prisoner of the Allies. 2. He was entrusted to the guardianship of Great Britain, and the King of England was empowered to choose the place where he should be interned. 3. Great Britain, Austria, Russia, Prussia, and France were to appoint commissioners, who without assuming the responsibilities of guards, should assure themselves of his presence. Napoleon's relatives were, in accordance with the protocol of August 27th, interned in various states of Europe. From England, whither he had been carried on the Bellerophon, Napoleon was sent by the British government to St. Helena. He forfeited the title of Emperor and was henceforth treated officially as a general. The remainder of his days were passed under the surveillance of the commissioners of the Allies’: ibid 470–71.
Compared with the British memorandum, it is even far less likely that the reasons behind the inaccuracies in the American memorandum are entirely innocent. A main aim and primary objective of that memorandum was to assert that only political, and not legal, punitive actions could be taken against the Kaiser: ibid 456–57, 470, 476). The memorandum did so primarily by examining several cases (Napoleon's case included) and arguing that the punitive actions taken in each of these cases were not legal but political in nature. Thus, it is unsurprising that the memorandum depicted Napoleon's case as it did.
110 Bohrer (n 44) 399, 420–44.
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112 Schabas (n 1) 3. Note that Schabas does not merely claim that at the time there was an overall lack of motivation for foreign rulers to charge a ruler of a different sovereignty; rather that there was a lack of a legal basis for doing so. This is evident from the fact that he goes on to argue that no relevant international crime existed.
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116 ibid.
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128 ibid 153.
129 ibid.
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131 ibid 472–73.
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138 The term ‘Boxer War (1900–01)’ refers here to the internationalised (later) part of the anti-colonialist and anti-Christian uprising that occurred in China between 1897 and 1901. In European and American sources this uprising is commonly known as the ‘Boxer Rebellion’. The Chinese rebels were known, in English, as the Boxers because many of them were practitioners of Chinese martial arts, which in Europe were referred to as ‘Chinese boxing’. The rebellion ended following military intervention by a multinational allied force (consisting of American, Austro-Hungarian, British, French, German, Italian, Japanese and Russian soldiers). The actions of many (if not all) of the allied states were not directed solely by a benevolent anti-atrocity motivation but also by colonialist, and even racist, motivations. Indeed, many atrocities were committed by members of the allied force: Fontenoy, Paul, ‘Boxer Rebellion’ in Li, Xiaobing (ed), China at War: An Encyclopedia (ABC-CLIO 2012) 24, 24–26Google Scholar.
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144 eg, Robert Cryer, ‘Towards an Integrated Regime for the Prosecution of International Crimes’, PhD thesis, University of Nottingham, 2001, 315.
145 Schabas (n 1) 316.
146 ibid 298.
147 Commission Report (n 8) 145.
148 Lapradelle and Larnaude (n 11) 20.
149 Miller and Scott (n 109) 458.
150 Scott, James Brown, ‘The Trial of the Kaiser’ in Mandell House, Edward and Seymour, Charles (eds), What Really Happened at Paris (Charles Scriber's Son 1921) 231Google Scholar.
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152 Miller and Scott (n 109) 475.
153 Scott (n 150) 247.
154 Pritchard, RJ, ‘International Humanitarian Intervention and Establishment of an International Jurisdiction over Crimes Against Humanity: The National and International Military Trials in Crete in 1898’ in Carey, John, Dunlap, William and Pritchard, RJ (eds), International Humanitarian Law: Origins (Brill 2003) 1Google Scholar; Brockman-Hawe, Ben, ‘A Supranational Criminal Tribunal for the Colonial Era: The Franco-Siamese Mixed Court’ in Heller, Kevin Jon and Simpson, Gerry (eds), The Hidden Histories of War Crimes Trials (Oxford University Press 2013) 50Google Scholar; Gordon, Gregory, ‘International Criminal Law's “Oriental Pre-Birth”: The 1894–1900 Trials of the Siamese, Ottomans and Chinese’ in Bergsmo, Morten and others (eds), Historical Origins of International Criminal Law, Vol 3 (Torkel Opsahl 2015) 119Google Scholar; Brockman-Hawe (n 141); Lemnitzer, Jan Martin, ‘International Commissions of Inquiry and the North Sea Incident: A Model for a MH17 Tribunal?’ (2017) 27 European Journal of International Law 923Google Scholar; Ben Brockman-Hawe, ‘Constructing Humanity's Justice: Accountability for “Crimes Against Humanity” in the Wake of the Syria Crisis of 1860’ in Bergsmo and others, ibid 181; Brockman-Hawe (n 115).
155 Gordon (n 154) 120.
156 Brockman-Hawe (n 141) 685.
157 Ziv Bohrer and Benedikt Pirker, ‘List of Tribunals Uncovered as a Result of Preliminary Research’ app to Project Proposal: Forgotten History of Pre-Nuremberg International Criminal Tribunals (prepared for submission to the Swiss Network for International Studies) (on file with author).
158 Anne Orford, ‘On International Legal Method’ (2013) 1 London Review of International Law 166, 173.
159 Brendan Simms and David Trim, ‘Towards a History of Humanitarian Intervention’ in Simms and Trim (n 93) 1, 3–4, 10–15.
160 Robert Cover, ‘Nomos and Narrative’ (1983–84) 97 Harvard Law Review 4, 4–5.
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163 ibid.
164 See above nn 75–76 and accompanying text.
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167 See Mark Osiel, ‘The Demise of International Criminal Law’, Humanity-Blog, 16 November 2013, http://www.humanityjournal.org/blog/2013/11/demise-international-criminal-law/; see also Douglas Guilfoyle, ‘Part I – This is not Fine: The International Court in Trouble’, EJIL: Talk!, 21 March 2019, https://www.ejiltalk.org/part-i-this-is-not-fine-the-international-criminal-court-in-trouble.
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