The empire which grew out of the French Revolution ended in defeat at the Battle of Waterloo. But the universalist principles it enunciated lived on and European politics were never the same again. Throughout the nineteenth century, as European states extended their empires overseas, a universalist concept of law gained ground according to which law was not the prudential balance between competing claims of citizens within a given and clearly delineated territory, as it had previously been understood to be, but instead the application in civil life of absolute moral principles.1 The worldwide reach of empires encouraged the development of the worldwide reach of the law. The French Revolution had destroyed for ever the principle that the king embodied the rule of God on earth – rule restricted to a particular territory – and so the future now seemed to belong to disembodied and abstract universal moral principles instead. In keeping with this universalist spirit, there was a growth in international law. New international laws of war, supposedly valid at all times and in all places, were formulated in Geneva, the city of Calvin and Rousseau – the philosophers of the English and French revolutions respectively. The founding conference of the Red Cross was held in 1863 and laws of war were to be promulgated there in 1864, 1906, 1929, 1949, and 1977. Geneva was also the city in which the ephemeral League of Nations was to be situated in the inter-war years.
But neither these laws, nor the laws of war and conventions agreed at The Hague in 1899 and 1907, criminalized war as such. Instead, war was regarded, broadly speaking, as an inevitable if unfortunate form of relations between states which needed to be regulated. It was precisely in order to enable such regulation that the enemy was considered to have the legal right to fight: he was iustus hostis, a justified enemy, and it was from this that certain key rights flowed, such as those accorded to prisoners of war. The enemy was not regarded as a criminal, and war was not regarded as a variant of police action. ← 51 | 52 →
This all changed during World War I, which paradoxically saw a return to a more moralistic and even theological understanding of the enemy. War was no longer seen as akin to a duel, a relatively equal combat conducted according to preordained rules in which both sides had equal rights, but instead as a Manichaean struggle between forces which embodied ultimate values of good and evil. Indeed, it was only on the basis of an appeal to such absolute values that the seemingly limitless killing of the Great War could be justified; a understanding of the conflict as being one between rival (and ultimately legitimate) national interests could never have justified such a terrible blood price.
As a result, although none of the twenty-five international conventions on the conduct of war which had been drawn up and ratified in the fifteen years before the outbreak of World War I had even suggested the criminal prosecution of state leaders, demands for the prosecution of the German emperor and the leaders of Ottoman Turkey – on the basis that their war was itself criminal – started at the beginning of hostilities and only grew louder as the war went on. Public opinion had been radicalized at the outbreak of war by now notorious pieces of war propaganda such as the famous claim that the Germans tossed Belgian babies on their bayonets, but real events like the sinking of the Lusitania, the massacre in 1915 of the Armenians in Turkey, and the execution of the British nurse Edith Cavell were also instrumentalized to present the Germans and Turks as beasts to whom it was only right to be beastly in return.
Early on in the war, the Allies proclaimed that the leaders of Ottoman Turkey should be prosecuted for the Armenian massacres of 1915, events which they termed ‘crimes against humanity and civilization’ in a communiqué issued simultaneously in London, Paris, and St Petersburg on 24 May 1915. After the war, and under massive pressure exercised by the British on the defeated sultan, several leading Turkish ministers (a justice minister, a foreign minister, an interior minister, and even Said Halim Pasha, the grand vizier himself from 1913 to 1917) were put on trial in April 1919 for war crimes. (The total number of people arrested was 107.2) Later that month, the death sentence was handed down to a provincial governor, Kemal Bey, for his command responsibility for the Armenian massacres of 1915; his execution caused a storm of protest, as nationalist Turks saw in the tribunal an instrument of repression forced on them by the victorious allies.
On 27 April 1919 the trial of Said Halim Pasha and other wartime leaders began in Constantinople, principally for the Armenian massacres. In May the special court martial acquitted twenty-six of its other defendants and the British, who still retained a military presence in Turkey, reacted ← 52 | 53 → instantly, taking Said Halim Pasha and other senior ministers into their own custody and transferring them to Malta. Turkish justice could evidently not be trusted to do what the British demanded of it. The British had in the meantime helped the Greeks occupy Smyrna, which only inflamed Turkish public opinion even more, since stories began to seep out of atrocities committed by Christians against Turks. The British denounced the procedures before the courts martial in Turkey as ‘a farce’, but they had deprived these very courts, whose creation they had demanded, of their main defendants. The sultan’s government, meanwhile, used the courts martial to prosecute its own domestic political enemies. In July 1919 the court martial handed down the death sentence on Enver Pasha and Talaat Pasha, two members of the triumvirate that had governed Turkey during the war. However, they had escaped to Berlin in 1918 and their trial had taken place in absentia.
The British, meanwhile, could not work out what to do with their august detainees in Malta. Nationalism was on the rise in Turkey as Kemal Atatürk grew ever more powerful. The Sublime Porte was tottering. As the situation spiralled out of control, and as the empire collapsed, in October 1920, Atatürk’s men took a group of British soldiers prisoner and demanded they be exchanged for the ministers still in custody on Malta. The British squirmed. Their legalism seemed to make all outcomes impossible. Even though the call for the persecutors of the Armenians to be tried by an international tribunal had been inserted into the Treaty of Sèvres (Article 230), the British realized that it would be impossible now to obtain evidence from a hostile government in Turkey for events committed five years previously. In November 1921 Said Halim and the others were returned to Turkey and the British captives to Britain. The Treaty of Sèvres was a dead letter, since Turkey had refused to sign it, and instead a triumphant Atatürk signed the Treaty of Lausanne in 1923. International justice had run into the sands of political expediency. But it was the Armenian desire for vengeance which had the last word: a dispossessed Armenian gunned down Talaat Pasha in the streets of Berlin on 14 March 1921, while a Dashnak cell assassinated Said Halim Pasha in Rome in December that year, just one month after his release by the British.
The British demand that Germans be prosecuted was just as energetic. Not coincidentally, in view of the importance of the sea as the birthplace of universal international law – the first universal ‘crime against humanity’ was piracy – the demands for the criminal prosecution of the Kaiser arose as a result of Germany’s sea war against Britain. The British quickly realized that German U-boats were a threat to their navy and world empire, and Winston Churchill, the First Sea Lord, instructed that German U-boat ← 53 | 54 → sailors who attacked British merchant navy vessels should be interned as criminals, not as normal prisoners of war, even though those supposedly merchant ships were in fact armed and trying to sink U-boats.
The situation escalated when, in 1916, the Germans responded in kind and executed the captain of a cross-channel ferry whom they had captured. They had discovered that he had tried to ram a U-boat the previous year.3 Captain Fryatt’s execution was intended to deter the commanders of merchant vessels from doing the same, but it only raised the British to new heights of fury. There were calls for the Kaiser to be held criminally responsible for his death. On 31 July 1916 Prime Minister Herbert Asquith called the execution an act of ‘terrorism’ and vowed that the Germans responsible would be put on trial, especially those in command.4
For the rest of the war, the British government issued threats to pursue criminal prosecution of Germans allegedly responsible for various atrocities. The function of these calls was largely propagandistic. The Germans played the same game: when, on 19 August 1915, the British ship, Baralong, sank a U-boat and then shot the surviving members of its crew in the water, and when Britain violated Greece’s neutrality in 1915 by landing troops at Salonika, just as the Germans had violated Belgian neutrality in 1914,5 the Germans made much of these violations of the laws of war. The Americans, however, were less keen than their British allies on war crimes prosecutions. This was because President Woodrow Wilson, although he portrayed the war in starkly ideological terms as a struggle between democracy and autocracy, in fact reserved his true hatred for the allegedly autocratic Catholic empire whose capital was Vienna, and whose break-up became American policy at the end of the war, rather than for the Protestant regime based in Berlin.6
The German monarchy was overthrown in November 1918 and the Kaiser fled to the Netherlands. Victory, however, did not quench the thirst for vengeance. Parades in American streets strung up effigies of the German emperor, while the British general election of 1918 was marked by demagogic pledges to ‘hang the Kaiser’. On 7 November, just a few days before the armistice, Britain announced that it had created a Committee of Enquiry to look into war crimes and war guilt, whose members were appointed by the attorney general. Shortly after the armistice, the committee’s remit was expanded to include examining whether the Kaiser could be tried for starting the war in the first place, in addition to looking into more prosaic cases of war crimes.7
Prime Minister Lloyd George was especially enthusiastic about the idea of a trial of the Kaiser but others in the Imperial War Cabinet were less so. The Australian prime minister was particularly hostile to the idea: ← 54 | 55 → ‘You cannot indict a man for making war,’ he said. A state had a right to wage war and the victors, he argued, had the same right to kill the Kaiser now outright. There was also debate about the true nature of German guilt: Churchill, for instance, argued that Russia had put the Serbs up to assassinating Archduke Franz-Ferdinand in Sarajevo in 1914 and that it therefore bore guilt for starting the war in the first place.8 In spite of these disagreements, the war cabinet approved the idea of trying the Kaiser on 28 November 1918. The attorney general, F. E. Smith, made it clear that no Allied war crimes should be allowed to come under unwelcome scrutiny by any neutral judges.9
At an Inter-Allied Conference held in London on 2 December, Lloyd George sought and obtained the support of the French for the idea of trying the Kaiser. Together with Georges Clemenceau, the French prime minister who needed no convincing that the Germans had to be punished, Lloyd George succeeded in making war crimes the first item on the agenda at Versailles when the peace conference opened on 18 January 1919. A Committee on the Responsibility of the Authors of the War was created to establish responsibility for starting the war and to set up a tribunal to try those accused. But within the committee, Robert Lansing, the United States secretary of state, was a vehement opponent of the Franco-British plan, and relations between the Americans and the Europeans were strained to breaking point. The committee concluded that positive international law at the time of the conflict made no provision for the prosecution of heads of state for starting wars but it did recommend penal sanctions for war crimes in the future.
President Wilson was eventually persuaded to accept the idea of a trial. Lloyd George convinced him that his pet project, the creation of the League of Nations to prevent war in the future, would be a dead letter if there was no trial. In an act unprecedented in the modern history of international relations, therefore, Germany was not only proclaimed guilty of starting the war but also of all the resulting damage. Article 231 of the Treaty of Versailles said, ‘Germany accepts the responsibility of Germany and her allies for causing all the loss and damage to which the Allied and Associated Governments and their nationals have been subjected as a consequence of the war imposed upon them by the aggression of Germany and her allies.’10 Meanwhile, Article 227 stated,
The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties.
A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defence. It will be composed of ← 55 | 56 → five judges, one appointed by each of the following Powers: namely, the United States of America, Great Britain, France, Italy and Japan.
In its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality. It will be its duty to fix the punishment which it considers should be imposed.
The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex-Emperor in order that he may be put on trial.
This article violated three key legal principles. First, the indictment was brought on the basis of retroactive legislation and in the absence of preexisting law: the Kaiser was to be tried by an Allied tribunal for crimes which were not crimes on any statute book anywhere in the world. On the contrary, it was quite common for peace treaties to contain agreements on a general amnesty for the defeated party. Second, the indictment was a Bill of Attainder, a government act directed against a specific person, even though such instruments are illegal and unconstitutional in many jurisdictions. Third, the Kaiser’s guilt was proclaimed in advance, in virtue of Article 231, the purpose of the ‘trial’ being only to decide on a suitable sentence.
The Hague Conventions and the other international agreements on the laws of war flowed from the classical understanding of international law, which is that the subjects of it are states. Any violations of international law are therefore penalized, if at all, by actions taken against the signatory states. The criminal indictment of a head of state, by contrast, eradicated the difference between international law and domestic penal law and made the head of state criminally responsible for acts of state. The fact that existing international law did not allow for the indictment was the reason why the Dutch government, proud of its tradition of offering political asylum and of its respect for international law, resolutely refused to extradite the Kaiser when he sought asylum there on the day after his overthrow. In view of the Dutch refusal, and as politics was overtaken by other events, the British eventually let the issue drop and the Kaiser died of natural causes in his Dutch residence at Doorn in 1941.
But the effect of the indictment did not go away. As the great French historian and academician Jacques Bainville accurately predicted in Les conséquences politiques de la paix (‘The political consequences of the peace’), published in 1920, the criminalization of Germany as a state in fact did more to unify Germany than Bismarck had ever done. It created a sense of collective national resentment and this quickly supplanted the previously disparate identities of the old German states which had ← 56 | 57 → remained strong even under the Empire. The reparations imposed on Germany were bad enough, as of course was the defeat itself, but the Germans found collective national humiliation by means of war crimes accusations even more intolerable. Major Otto von Stülpnagel published Die Wahrheit über die deutschen Kriegsverbrechen (‘The truth about German war crimes’) in 1920, refuting these allegations, and the book was a huge success.11 With ruthless attention to detail, it claimed to rebut, point by point, the allegations made against Germany, usually either justifying individual acts or saying that the Allies had done the same or worse (tu quoque).
The Allies continued to demand the trial of other war criminals, and at the London conference in February 1920 they called for 800 Germans to be put on trial, including the wartime chancellor, Bethmann-Hollweg, Admiral von Tirpitz, Field Marshal Hindenburg, and General Ludendorff. This demand eventually led to the Leipzig trials of German soldiers, albeit of a tiny fraction of the number of defendants first mooted, and only relatively junior perpetrators: there were only forty-five names on the list the Allies eventually handed to the Germans on 7 May 1920, and none of them was famous. It required two laws, both of them retroactive, and both passed under intense Allied pressure, for the trials eventually to begin before the Leipzig Reichsgericht on 10 January 1921. The core legal prohibition against trying a defendant twice for the same crime (known as ‘double jeopardy’ or non bis in idem) was retroactively lifted in order to permit the re-trial of some defendants, a measure which aroused huge criticism because it flew in the face of that well-known legal principle. Seventeen trials were held of low-level soldiers for a variety of minor crimes including theft, creating great resentment in Germany, until the last trial petered out in November 1922. It was largely on the back of the outrage at these humiliations that Hitler and his fledgling Nazi party mounted their ‘Beer Hall Putsch’ the following year.
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The attempt to criminalize Germany and the Kaiser, through trials and punitive reparations, was, in short, a catastrophe. So was Woodrow Wilson’s attempt to create a new world order of international law through the League of Nations. Wilson tried to convince isolationists at home by larding his speeches with rich doses of messianic hyperbole which recalled the millenarianism of the Puritans who had executed Charles I: on a tour of the United States to promote ratification, he said, ‘I wish that they [opponents of ratification] could feel the moral obligation that rests upon us … ← 57 | 58 → to see things through, to see it through to the end and make good their redemption of the world. For nothing less depends on this decision, nothing less than the liberation and salvation of the world.’12 But it was to no avail: the League of Nations was set up, to be sure, but the United States Senate refused to ratify the treaty and the Americans never joined it.
On the other side of the world, meanwhile, an intense new political movement had been born which also drew its strength from the same combination of messianism and Manichaeism which inspired Wilson, and to which Wilsonism was in some senses a reply:13 Bolshevik Communism under Lenin. Like other Manichaeans – indeed, like the English Puritans and the French revolutionaries – the Leninists believed in a great struggle between good and evil and in a final triumph leading to world unity.14 They believed that politics was itself the field in which human salvation was decided. Lenin was convinced that the enemy must be destroyed and not just defeated, and struggle became a core Communist concept, the very prerequisite for progress itself and the crucible in which the ‘new man’ would be formed.15
Communism’s love of conflict and its intense moralism combined in a potent brew to give Communists a deep attachment to the concept and practice of the criminal trial, both as an expression of struggle and as instrument of political repression. Trotsky dreamed of being the prosecutor at a trial of ‘Nicholas Romanov’ before a revolutionary tribunal, in the manner of the trials of Louis XVI and Charles I. He wrote in his diary many years after the event (in 1935):
During one of my brief visits to Moscow – I believe it was a few weeks before the execution of the Romanovs – I remarked in passing to the Politburo that, considering the bad situation in the Urals, one should speed up the Tsar’s trial. I proposed an open court that would unfold a picture of the entire reign (peasant policy, labour, nationalities, culture, the two wars etc.). The proceedings of the trial would be broadcast nationwide by radio; in the volosti, accounts of the proceedings would be read and commented upon daily. Lenin replied to the effect that this would be very good if it were feasible.16
In the event, the decision was taken to murder the tsar without judicial ceremony for fear of the White forces advancing on Ekaterinburg where the imperial family was being held. Failing a real trial of the tsar, however, the Bolsheviks quickly discovered the usefulness of political justice in the broader sense. Mock trials were staged all over the Soviet Union from 1920 onwards as means for conducting ‘agitation’ (political propaganda exercises) for the edification of the proletariat.17 Trials of all kinds of things were staged: trials of Charles I, trials of Lenin (he was ← 58 | 59 → acquitted), trials of poetry, trials of religion. In some cases, real ‘show’ trials were held in the same public hall as mock agitation trials; it must have been difficult for the casual observer to know the difference.
Soon the concept of such trials became the hallmark of Stalinism and its gruesome excesses, although it was Lenin who originally expressed the nub of the matter with his customary cruel realism: ‘The court is an organ of power,’ he wrote. ‘The liberals sometimes forget this but is a sin for a Marxist to do so.’18 However, the Soviets did not stage only the trial of internal traitors to Bolshevism. They and their allies across Europe were to play a decisive role in setting up all the major war crimes trials across Europe after 1945, including not only the Nuremberg trials themselves but also those of Nazi collaborators and other political enemies, especially in Eastern Europe.
* * *
In the end, however, it was neither the British nor the Bolsheviks who organized the third trial of a head of a regime in history, but Greece. Following the Greek campaign in Anatolia and its subsequent rout in 1922, Greece was seized by revolution. King Constantine was forced to abdicate by a Revolutionary Committee composed of anti-monarchist naval and army officers loyal to the liberal politician, Eleftherios Venizelos. Revolutionary troops marched into Athens on 28 September 1922, and the leading members of the royalist coalition which had planned the disastrous Anatolian campaign were arrested: Petros Protopapadakis, the prime minister; Dimitrios Gounaris, the former prime minister who had been Protopapadakis’s minister of justice (Protopapadakis had been his finance minister); Georgios Baltatzis, the foreign minister; Nikolaios Stratos, the minister of the interior (who had been prime minister for ten days in May 1922 after Gounaris and before Protopapadakis); Nikolaios Theotokis, the minister for war; General Hatzianestis, the commander in chief of the Greek armies during the Greek–Turkish war. The trial is known as the Trial of the Six, because these six men were sentenced to death and executed, but there were in fact eight defendants: General Xenophon Stratigos and Admiral Michalis Goudas were sentenced to life imprisonment. Meanwhile one and a half million Greek refugees streamed into Greece from their ancient homelands in Anatolia, as the Hellenic presence in Anatolia drew to a gruesome close.
The Revolutionary Committee had initially been expected to execute the leaders of the Constantinist government summarily and then proclaim a general amnesty. But the Committee announced on 17 October that those responsible for the national disaster would be put on trial. This ← 59 | 60 → was not the result of a sudden desire to respect due process, however, but instead the result of an understanding that a trial would help the revolution. ‘The Revolution cannot rest with the resignation of Constantine,’ the Revolutionary Committee argued, ‘because the political and military Constantinist clique must be neutralised. The Revolution proclaims unity, but unity would be immoral if it signified the forgetting or putting aside of responsibilities and the confusion of innocent and guilty. The exemplary punishment of the enemies of the country is therefore necessary.’19
The ministers were accused of treason, on the basis that their lost war had allowed enemy troops to enter Greek territory. It was obvious that this was merely a device for diverting attention from the humiliation of defeat and destroying the royalist politicians into the bargain. The charges closely anticipated those of the Riom trial of 1942 (the subject of the next chapter) because the Constantinist leaders were accused of being criminally responsible for military failure, and for having led the country into war unprepared. The charges were explicitly political in nature: the men were accused of failures of decision-making, causing defeat, wasting money, betraying national interests, ignoring warnings from abroad, making the wrong military appointments. A special court martial was convened and the proceedings started on 13 November 1922. The prosecution witnesses included George Rallis, son of the five times prime minister, Dimitrios Rallis (1844–1921) and brother of the wartime prime minister, Ioannis Rallis (1878–1946), who was himself to face trial for collaboration in 1946. (Ioannis Rallis’s son, also George, was prime minister from 1980 to 1981.)
The trial was effectively a wide-ranging discussion about politics. The actual criminal charge of treason was hardly broached: no doubt the prosecutors felt it was a difficult charge to sustain. The second most important defendant, Gounaris, the main leader of the opposition to Venizelos, went down with typhus during the trial and was absent for most of it; the proceedings carried on regardless, in violation of the principle that defendants must be present at their own trial. When it came for the defendants to make their final submissions, Gounaris sent a pencilled note written from his prison hospital bed which was read out in court. At 6.30 a.m. on Tuesday 28 November 1922, the court was hurriedly convened. The sentence – death for the six, life imprisonment for the admiral and the general – was read out to a near-empty room and one must assume that the early hour was chosen deliberately as a way of burying bad news; the defendants had already been taken to their place of execution the previous night. ← 60 | 61 →
There, a hundred soldiers accompanied Gounaris, Stratos, Protopapadakis, Theotokis, Baltatzis, and Hatzianestis as they were lined up in front of their respective graves. There were five soldiers in the firing squad. Baltatzis cleaned his monocle with his handkerchief and put it on; General Hatzianestis stood to attention. As a soldier approached him to carry out the sentence of military degradation, the general stripped off his own epaulettes, refusing to allow anyone to touch him. All six men stared their executioners silently in the eye as the shots rang out shortly after 11 o’clock that morning.20