I was reading Richard Evans’ The Coming of the Third Reich and came across this passage:
But the few trials that did take place, in Leipzig, before a German court, almost uniformly failed because the German judiciary did not accept the legitimacy of most of the charges. Out of 900 alleged war criminals initially singled out for trial, only seven were eventually found guilty, while ten were acquitted and the rest never underwent a full trial. The idea took root in Germany that the whole concept of war crimes, indeed the whole notion of laws of war, was a polemical invention of the victorious Allies based on mendacious propaganda about imaginary atrocities. This left a fateful legacy for the attitudes and conduct of German armed forces during the Second World War.
This seemed deeply surprising to me- why did the allies, particularly the French and Belgians, not pursue any further action, assuming that this was an available option?
It appears that after the allied governments established the Commission of Responsibilities, which concluded with recommendations on blaming the war on the central powers and to prosecute suspected central power aligned war criminals, the German Government were simply able to refuse further cooperation and instead opted to prosecute a significantly downsized list of individuals on their own terms.
This appears to be in complete contrast to how much say Germany had on the Treaty of Versailles, so what exactly was going on here when it came to this relative leniency?
Thanks for your time!
Ok, so, i'll take a crack at this. I think i can provide some useful commentary, but i do also think there is a lot more to be said for the political disagreements between the allies (which, as you shall see, i see as the main cause for how things turned out) than i am portraying here. I especially didn't have a lot of good sources for the diplomacy between France, Britain and Belgium in the aftermath of the Leipzig Trials.
As usual there are probably things i need to edit (grammar, bad sentences, unclearly worded points), and if some points were not really addressed feel free to ask and i'll see if i can calrify them.
Some initial comments on war crime trials
War crime trials, and even more trials for breach of Intl. law, have a long history, Leipzig was not (nearly) the first.
On the other hand, individual responsibility, especially for leaders, has nowhere been the norm after wars, WW2 (for the axis) was very much an exception (along with the Rwanda and Yugoslavia tribunals). Most modern wars don't see such trials either, and most modern war leaders aren't tried for responsibility in war crimes, even when it is proven that such were conducted during the war.
And when trials of war crimes do happen, the vast majority happen by courts in the same country that perpetrated the crime. The US tries it's own soldiers in it's own military tribunals.
I mention this just to illustrate that it's not "self-evident" that leaders are tried for crimes during war, nor that the trial is done on the basis of international law or in an international court. Most of the time the perpetrating soldier is tried in an internal court for breach of internal codes of military conduct.
The (run up to the) Treaty of Versailles and Sevres
The initial talk of trials for actions done in World War 1 arose quite early. Supposed German violations of international law in 1914 had already compelled the French, British and Russian governments to start collecting evidence, with the public intention to prosecute war criminals.
Similar intentions were announced to the start of the Ottoman Armenian genocide (at the time, it would have been called a massacre, atrocity or crime against humanity). The entente governments announced in 1915 to hold members of the ottoman government, and their agents, who were found responsible in such massacres, personally responsible.
After the war there was to be a committee of experts to study the matter of responsibility (an idea that the German government at the time concurred with). The Germans wanted a neutral committee, but the allied governments had decided that the German government was responsible for the war already, thus denying this. The committee had only allied members.
The report “1919 Report of the Commission on the Responsibilities of the Authors of War and on Enforcement of Penalties for Violations of the Laws and Customs of War” unanimously concluded that the war carried out by the Central Powers and Turkey had used illegal means, but split into a majority and minority on the question of prosecution of individuals, and in regards to how to treat the Kaiser Wilhelm II
One issue with trying the Kaiser was that a trial against him for starting the war might raise difficult questions and issues and become a discussion on the entire political history up to the war, possibly reflecting badly on the entente as well. The issue was controversial in the treaty negotiations, with the French especially seeing a trial as satisfying public opinion and sending a message to future aggressors. The Americans worried that a trial might stoke the fires of revolution in Germany (or make Wilhelm II a martyr, akin to Charles I), and establish legal precedents damaging to American sovereignty, so strongly opposed the trial of Wilhelm II at all.
Britain had just had an election in 1918 so even if a trial of Wilhelm II for starting the war was popular, it was easier to ignore that. In the end the British supported trying him for responsibility for war crimes, but not for starting the war. These disagreements lead to the quite weirdly formulated and unclear art. 227. This also reflects differing views in America, Britain and France on what the war was, Britain and America being somewhat more sympathetic to see it as a culmination of faults on both sides.
The British also opposed at the time the idea of individual responsibility for Wilhelm for breaking the “sanctity of the treaties” (as they saw the state as the legal subject, not the individual), but this was included on French insistence. Interestingly, the Belgians strongly opposed the idea that a head of state could be held responsible for international crimes, possibly due to the implications against Leopold II for crimes in the Congo. In the final treaty negotiations, the American president Wilson was the one that wanted to have the wording in the (weird) way it ended up, despite this being very vague and arguably undermining some of their positions during the negotiations. Wilson did not want the article to indict Wilhelm II for specifically breaking international law.
In regards to individual responsibility and a tribunal the majority thought that officials of all ranks could be prosecuted for offences against the laws and customs of war and law of humanity, and called for the establishment of a High Tribunal to deal with the matter. Though of course it only provided for prosecution of central power and Turkish soldiers or officials.
The dissenters here were the US and Japanese governments. The US thought that “law of humanity” was too vague and undefinable, and would include retroactive application of law (ex post facto). They also did not want to see leaders prosecuted, only lower level officials who actually committed the crimes, and did not support an international tribunal, rather wanting domestic trials (again, an international tribunal would be inherently ex post facto). Japan supported this position, especially not wanting to indict heads of state.
The two treaties that initially came out of the war, the 1919 Treaty of Versailles and 1920 Treaty of Sevres follow the report somewhat. The Versailles treaty art. 227 indicted the German Kaiser William II for “supreme offences against international morality and the sanctity of treaties” and provided for a special tribunal to be established to try him.
However, in regards to a general “high tribunal” the Versailles treaty did not follow up, rather art. 228 recognised the right of allied governments to “bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war” and an obligation for Germany to hand over such people by request. Art. 229 provided for trials of allied war criminals, stating that they should be tried before military tribunals in that same allied country.
Similar provisions (excluding the special one for Wilhelm II) was found in the 1920 Treaty of Sevres, see art. 226-230.
This (especially art. 228 and 229) largely reflects the American view of justice that trials should take place in domestic courts, and it seems that this won through in the actual treaty negotiations, possibly along with a general (and further) cooling of British interests in international trials.
Continued below