Penalties (Art. 227 to 230)

[The vertical rule indicates treaty text.]

Article 227.

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 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.

Notes to Part VII, Articles 227 to 230

The German delegation declined to recognize the competence of the special tribunal to be established for the trial of William II or any legal basis for the prosecution. Germany could not admit that “a German should be brought before a foreign special tribunal [Page 372] in virtue of a special law enacted by foreign Powers to apply to him alone and framed not on principles of right but on those of politics, and that he should be punished for an act which, when it was committed, was subject to no penalty”. The German Government also refused to agree to the demand which the Allies would make upon the Netherlands Government for the surrender of the ex-Emperor. Likewise the German code forbade the surrender of the persons referred to in article 228 ( Foreign Relations, The Paris Peace Conference, 1919, vi, 874).

Germany, however, was prepared to see that violations of international law were punished with full severity and to submit the question whether an offense against the laws and customs of war had been committed to an international tribunal of neutrals competent to judge all violations by nationals of all the signatories, Germany to have an equal part in the formation of the tribunal and meting out of punishment to be left to national courts.

The German delegation linked this issue of penalties to the question of responsibility for the war. On May 13 it protested against article 231 (part VIII), stating that “the German people did not will the war and would never have undertaken a war of aggression” and that the delegation did not consider the former German Government as “the party which was solely or chiefly to blame for this war”. The Allies were asked to communicate a report made by a commission set up by them to determine the responsibility of the authors of the war ( ibid., v, 727). This request was refused by the Allies on May 20 ( ibid., p. 742), but somehow the report got into the press, and the German delegation appointed a special committee to consider it. On May 28 the “observations” of this special committee were transmitted to the Allies; the document laid the blame for the war primarily on Tsarist Russia and represented Germany as fighting a war of defense ( ibid., vi, 781).

The Allied reply to the German contentions dealt first with the responsibility of Germany for the war and rejected the German argument in toto; “the Allied and Associated Powers are satisfied that the series of events which caused the war was deliberately plotted and executed by those who wielded the supreme power in Vienna, Budapest, and Berlin”. The Allies did not stop there, however, but declared that for decades Germany, under the inspiration of Prussia, had been “the champion of force and violence, deception, intrigue and cruelty in international affairs” and had “stood athwart [Page 373] the whole current of democratic progress and international friendships throughout the world”.

For these reasons the Allies refused to accept the arguments of the German delegation against the trial of William II. The punishment of those responsible for the war was “essential on the score of justice” and might be “a deterrent to others who, at some later date, may be tempted to follow their example” ( ibid., p. 957). The ex-Emperor was “arraigned as a matter of high international policy, or the minimum of what [was] demanded for a supreme offence against international morality, the sanctity of treaties and the essential rules of justice”. The tribunals against which the German delegation complained would “represent the deliberate judgment of the greater part of the civilised world”; neutrality would not be admitted, for the arraignment of the ex-Emperor would be judicial only in form, not as to substance.

On June 22, 1919 the German delegation addressed to the President of the peace conference a note sent under instructions from the Reich Minister of Foreign Affairs in which it was stated that “the Government of the German Republic engages to fulfill the conditions of peace imposed upon Germany”, with the exception of articles 227 and 231.

The eleven hundred words of the note watered down that engagement considerably, but the note ended with this formal declaration:

“The Government of the German Republic is ready to sign the treaty of peace without … undertaking any responsibility for delivering persons in accordance with Articles 227 to 230 of the treaty of peace.”

This declaration was signed “Bauer, President of the Reich Ministry.”

The reply of even date stated that the Allied and Associated Governments could “accept or acknowledge no qualification or reservations and must require of the German representatives an unequivocal decision as to their purpose to sign and accept as a whole, or not to sign and accept the treaty as finally formulated.

“After the signature the Allied and Associated Powers must hold Germany responsible for the execution of every stipulation of the treaty.”

The unconditional acceptance by the German Government on June 23 is a formal record of the fact that Germany lost the war of 1914–18. The note read: [Page 374]

“The Government of the German Republic has seen with consternation from the last communication of the Allied and Associated Governments that the latter are resolved to west from Germany by sheer force even the acceptance of those conditions of peace which, though devoid of material significance, pursue the object of taking away its honour from the German people. The honour of the German people will remain untouched by any act of violence. The German people, after the frightful sufferings of the last few years, lacks all means of defending its honour by external action [against the outside world]. Yielding to overpowering force, but without on that account abandoning its view in regard to the unheard-of conditions of peace, the Government of the German Republic therefore declares that it is ready to accept and to sign the conditions of peace imposed by the Allied and Associated Governments”.

Wilhelm II of Hohenzollern had abdicated as emperor of Germany, but not as king of Prussia, by decree on November 9, 1918: he was across the Netherlands border by the time the decree was public. For an account of an attempt to kidnap him in January 1919, see Foreign Relations, The Paris Peace Conference, 1919, ii, 85. He remained in his internment until his death on June 4, 1941. In the interval of nearly 23 years he had no political, and but little personal, influence upon the course of affairs in Germany.

As stipulated in article 227, paragraph 4, the president of the peace conference addressed to the Netherlands Minister of Affairs on June 28, 1919, date of the signing of the treaty of peace, a note concerning the rendition of the German ex-Emperor. The note stated that the person under notice represented the military party of Germany and that his being at large would revive their hopes and menace the peace obtained at great cost and not yet fully assured. The Allied and Associated Governments suggested to the Netherlands Government that guarding the ex-Emperor involved a heavy responsibility, which neutral Netherlands did not seek and which entailed an ungrateful task that the Allies and Associates were disposed to assume.

The Netherlands Minister of Affairs replied succinctly on July 7:

“The Royal Government is conscious of its international obligations; it is likewise conscious of not having failed in fulfilling them.

“With reference to the matter raised by the communication of the Powers, it must reserve to itself the free exercise of its sovereignty [Page 375] with respect to the rights which appertain to it and to the duties incumbent upon it.”

The president of the peace conference addressed a second note to the Netherlands Government on January 16, 1920, within a week after the treaty of peace had entered into force. The Netherlands Government was informed that the powers had decided to execute article 227 without delay. “In consequence, the Powers address to the Government of the Netherlands the official demand to deliver into their hands William of Hohenzollern, ex-Emperor of Germany, in order that he may be judged.” After reviewing the acts for which the government that he headed was responsible, the note defined the special character of the arraignment in virtue of article 227. “They have”, the note said, “the duty of insuring the execution of article 227 without permitting delay by arguments because there is not in question the circumstance of a public accusation basically of a juridic character but an act of high international policy imposed by the universal conscience, in which the forms of law have been introduced solely in order to assure the accused such a body of guarantees as public law has never known.”

In his reply of January 23, the Netherlands Minister for Foreign Affairs repudiated the implication that it had a duty of rendition similar to that incumbent upon Germany as a result of article 228. The Netherlands Government energetically rejected any suspicion of a desire to “cover with its sovereign law and its moral authority violations of the essential principles of solidarity of nations, but it cannot recognize an international duty of associating itself with the act of high international policy of the powers. If, in the future there was instituted by the League of Nations an international jurisdiction competent to judge, in case of a war, acts that are qualified as crimes and submitted to sanction by a prior statute, the Netherlands would properly associate itself with this new regime.” As things were, the Government admitted a duty only under the laws of the kingdom and the national tradition which was that at all times the country was a “land of refuge for vanquished in international conflicts”.

The general arguments of the reply on February 14, 1920 did not shake the position of the Netherlands, which was reiterated in that Government’s note of March 2.

The correspondence closed with a note of March 24 from the British Prime Minister in the name of the Allies, which recorded [Page 376] knowledge of the issuance by the Netherlands Government of a royal decree assigning a definite place of internment to the ex-Emperor in the province of Utrecht. This decree was supplemented by an undertaking of the Netherlands Government to assume complete responsibility for the custody of the ex-Emperor, the control of his correspondence and his relations with the outside world. The Allied Governments, the despatch said, “take note of this undertaking as indicating the serious intentions of the Dutch Government to mitigate the perils that may result from the presence of the ex-Emperor on their soil.” The note closed with a warning that, if the person in question should become a center of reactionary propaganda and a menace to peace, “the Netherlands Government cannot escape the exclusive responsibility, both for the event and for its consequences, which they have thus deliberately chosen to assume”.

The note of the Supreme Council dated May 5, 1921 found Germany in default as regarded fulfilment of article 227, and the German Government on May 11 stated its resolve to execute the unfulfilled portions of the treaty.

Article 228.

The German Government recognises the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war. Such persons shall, if found guilty, be sentenced to punishments laid down by law. This provision will apply notwithstanding any proceedings or prosecution before a tribunal in Germany or in the territory of her allies.

Text of May 7:

The German Government recognizes the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war. Such persons shall, if found guilty, be sentenced to punishments laid down by military law. This provision will apply notwithstanding any proceedings or prosecution before a tribunal in Germany or in the territory of her allies.

The German Government shall hand over to the Allied and Associated Powers, or to such one of them as shall so request, all persons accused of having committed an act in violation of the laws and [Page 377] customs of war, who are specified either by name or by the rank, office or employment which they held under the German authorities.

Note to VII, 228

The German delegation declared that violation of international law by individuals should be punished ( Foreign Relations, The Paris Peace Conference, 1919, vi, 900). On the other hand other violations committed by nationals of both parties under the strain of war should be forgotten, and an amnesty had usually been included in treaties of peace. In the lack of such provision, Germany proposed that each state grant an amnesty to nationals of the other party for punishable acts committed under stress of war, provided they were not contrary to the laws and usages of war. Since the treaty provided for the reexamination of German court decisions in civil cases by the mixed arbitral tribunal, the same privilege should be extended to criminal cases. Finally, Germany protested against the treatment at the hands of occupation officials of persons in Alsace-Lorraine and the Palatinate whose actions were covered by German laws in force.

The president of the peace conference on February 3, 1920 transmitted to the German Peace Delegation lists of “the persons whose responsibility appears to be the most seriously involved” which had been drawn up by the British, French, Italian, Belgian, Polish, Rumanian, and Serb–Croat–Slovene Governments. The list contained the names of over nine hundred persons and included the names of political, military, and naval leaders.

The Germans then represented that the first reply to this communication succeeded in modifying the treaty. That reply, of Freiherr von Lersner, of even date (United Kingdom, Protocols and Correspondence between the Supreme Council and the Conference of Ambassadors and the German Government and the German Peace Delegation between January 10, 1920, and July 17, 1920, Respecting the Execution of the Treaty of Versailles of June 28, 1919, No. 32, Cmd. 1325), said:

“This evening your Excellency transmitted to me a note containing the names of those Germans whose extradition is claimed by the Allied Powers. In the course of the last three months, I have most solemnly laid before the representatives of the Allied and Associated Governments, ten times in writing and thirteen times orally, the reasons which make it impossible to comply with such a claim, whatever the attitude adopted by the accused and whatever their names.

“I must remind your Excellency of my constantly repeated statement that no German official would be prepared to assist in any way [Page 378] in the execution of the claim for extradition. It would constitute such assistance, were I to forward your Excellency’s note to the German Government. I am therefore returning it to you herewith.

“I have informed my Government that I can no longer fulfil my office and shall leave Paris by the next train.”

On this, when the list was sent to the German Chancellor on February 7, the president of the peace conference commented “that M. de Lersner’s act was an individual manifestation, which did not bind the responsibility of the German Government”. Nevertheless, in the further note of February 13 the Supreme Allied Council found a German proposal to commence final proceedings against German nationals in the Supreme Court at Leipzig “consistent with the execution of Article 228 … and expressly provided for at the end of the first paragraph”. They would “see whether the German Government … is really prepared to try them itself” and reserved “the right to estimate by [its] actions the good faith of Germany”. This constituted a tacit acceptance of the German proposal.

The Allied Council transmitted to the German delegation on May 7, 1920 a revised list of 45 persons who were to stand trial which had been prepared by an Inter-Allied Mixed Commission charged with collecting, publishing, and communicating to Germany details of the accusations against each of the accused persons. The German Government had stated in its letter of March 7 that it was prepared at once to institute penal proceedings before a supreme court at Leipzig, secured by most complete guaranties and distinct from the application of all previous judgments, proceedings, or decisions by German civil and military tribunals against all Germans whose surrender the Allied Governments intended to demand. The Allies regarded this offer as compatible with the execution of Article 228.

The protocol concluded at Spa on July 9, 1920 provided formally for this procedure. The protocol reads (United Kingdom, op. cit., Misc. No. 15, Cmd. 1325):

“The Conference decided, with the unanimous agreement of the plenipotentiaries representing the Governments of Belgium, France, Great Britain, Italy and Japan of the one part, and of Germany of the other part, that it is desirable, on the basis of the letter of the 7th May last addressed by the President of the Supreme Council of the Allies to the German Government, to proceed with the preparation of the case for the prosecution and the institution of proceedings [Page 379] in the cases submitted to the judgment of the court of Leipzig in conformity with the said letter.

“In order to hasten the preparation of the prosecution in these cases and to obtain all the definite data required, the Attorney-General of the Court of Leipzig shall send direct and as need arises to the Attorney-General of England, or to the Ministers of Justice of the other Allied Powers, as the case may be, any request he may have to make for information or judicial enquiry by interrogatories or in any other way. Such request shall be given effect to with the least possible delay, and the information collected shall be transmitted directly to the Attorney-General of the Court of Leipzig.”

Trials at Leipzig began on May 23, 1920. They were hampered by difficulties in bringing the accused to court and in securing evidence. Of six persons brought to trial at the instance of the British Government, five were convicted and given short sentences which included periods of detention while awaiting trial. Of six persons on the Belgian and French lists, one was convicted of shooting prisoners of war and sentenced to two years’ imprisonment. On January 15, 1922 a commission of Allied jurists, appointed to inquire into the Leipzig trials, reported unanimously that it was useless to proceed with further cases and held that some of those acquitted should have been condemned and that the sentences of those condemned were not adequate. The commission recommended that the remaining accused should be handed over to the Allied Governments for trial. No attempt was made to give effect to the recommendation.

See generally, United Kingdom, German War Trials; Report of Proceedings before the Supreme Court in Leipzig (Cmd. 1450).

Article 229.

Persons guilty of criminal acts against the nationals of one of the Allied and Associated Powers will be brought before the military tribunals of that Power.

Persons guilty of criminal acts against the nationals of more than one of the Allied and Associated Powers will be brought before military tribunals composed of members of the military tribunals of the Powers concerned.

In every case the accused will be entitled to name his own counsel.

[Page 380]

Article 230.

The German Government undertakes to furnish all documents and information of every kind, the production of which may be considered necessary to ensure the full knowledge of the incriminating acts, the discovery of offenders and the just appreciation of responsibility.