ATROCITY TRIALS

Evening Post, Volume XCVIII, Issue 38, 14 August 1919, Page 3

ATROCITY TRIALS

SHEETING HOME THE

BLAME

POINTS OF THE LEGAL PROBLEM

SUMMARISED OPINIONS.

Persons accused of having committed aufcs in violation of the laws and customs of war are to bo tried and punished by Military tribunals under military law If the charges affect nationals of -only one State, they will be tried before a tribunal of that State; if they affect nationals of several States, they will be tried before joint tribunals of the States concerned. Germany shall hand over to tho associated Government-, either jointly or severally, all persons so accused and all documents and information necessary to insure Ml knowledge of the incriminating acts, tho discovery of the offenders,'' and the just appreciation of tho responsibility.—Extract from Section VII. of Peace Treaty. The following article is slightly condensed from an American paper which sought to express, by collecting opinions from American and British sources, the probable legal course of the proposed trials of the "war criminals."' What will or may happen to particular German offenders in high places, or in low, as a consequence of the punitive provisions of the Peace Treaty is more a matter of discussion for the present than for definite prediction (says an American paper). Officers of the American and Allied armies are naturally interested in the questions -raised by the decision to punish these offenders through military tribunals, and under military law, and non-military persons probably find their interest in what military law can do and how it does it considerably stimulated. MILITARY JURISDICTION. According to the Manual of Courtsmartial for the United States Army, military, jurisdiction is of four kinds; (a) Military Government (the law, of hostile occupation); that is, military power exercised by a belligerent, by virtue, of his occupation of an enemy's territory, over such territory and its inhabitants. This belongs. to the law of war, and, therefore, to the law of nations. When a conquered territory is cededl to the conqueror, military government continues until civil government is established by the new Sovereign. (b) Martial law at home, or as a domestic fact;_ by which is meant military power exercised in time of war, insurrection, or rebellion in parts of the country retaining their allegiance and over persons and things not ordinarily: subjected to it. .

(This particular form of military juris: diction does' not apply as between the Germans and the Allies or the League of Nations.)

. (c) Martial law applied to the army; that is, military power extending in time of war, _ insurrection, or rebellion over persons in the military service, as to obligations arising out of such emergency and not falling within the domain of military law or otherwise, regulated by law.

(Both (b) and (c) are confessedly applications of the doctrine of necessity to a. condition of .war—they are emergency powers, deduced from the right of selfpreservation.)

(d) Military law ; which is , the legal system that regulates the government of the military establishment law is "the custom of war," consisting of customs of service both in peace and in war. Unwritten military law is "the custom of war," consisting of customs cf service both in peace and war.

Great Britain, France, Italy, and Belgium have military codes which recognise the same general principles', though of necessity differences exist in detail. Except in the case of the Kaiser the summary of the Treaty does not indicate the constitution of the joint tribunals appointed for., offenders against nationals of more than one State as to what particular military law is to be applied. But, except in minor details, these laws are the same among Western civilised nations, German miUtary law being a law, apart.

THREE CLASSES OP OFFENDER.

Lawyers in discussing the subject point out that violators of the laws and customs of war —tho laws and customs of civilised nations at war as distin-g-iished from those of the Germans—are divided into three categories—the individual offender, the giver of the specific order in case of a violation by order, and the originator of the general policy of which the order was an incident. Take the case of the enslavement of .-the girls and young women from 14 years and upward of Lille, Roubaix, and Turcoing, when under orders posted in those towns by the German commandantur, soldiers went through the streets by night—it was on Easter Monday, 1916 —gathered women of all classes from their houses, herded them into cattle vans, and carried them off to forced labour and prostitution. Twenty-five thousand persons, it was said, were carried off. This, therefore, is,'a case of which the French military .tribunals will certainly take cognisance. By the terms of the Treaty the Germans must supply any additional evidence in their possession and produce the accused for the trial. Among the accused, according to the opinion of a man familiar with the French view of the situation, will undoubtedly be the German commander who signed the posted order or who was responsible for it. Among them also will be individuals—soldiers or others—who carried out the order, and in doing so committed acts of brutality or outrage. j Among them also—if they can be got at— are the persons in the German high command who were responsible for the policy which produced this particular order. ! DEATH PENALTIES LDSELY. In view of the magnitude of the I crime and the peculiar atrocity of the offence against the laws of war and the I decencies of civilisation . charged, the death penalty will, this authority says, certainly .be asked for and very likely inflicted in this case upon a number of persons. The signer of the order, if alive, can hardly escape; any man higher up whose immediate connection with initiating it can be proved will be equally guilty in the eyes of the Court, and no tribunal of Frenchmen caii be expected to shrink from the logic of the situation or shirk its duty, to humanity by letting him off. Naturally the individuals who personally mistreated the women will not be spared where their guilt is proved—but many of them.have already fallen victims to Allied high explosives or maeliine-g-un bullets, arid the evidence will be difficult to collect because so. many of tlio women also succumbed to the -hardaliins to which they were sub-jected—-so that perhaps tho number actually put to death after all will bo a very small proportion of those who shared in the guilt. It ha.? been suggested that in the. case of officers—especially higher officers—thcmilitary courts will degrade the officer found guilty of certain offence; —publicly and ceremoniously deprive him of his rank before inflicting the death jpenalty. That is the practice of European armies in case of their own officers who commit disgraceful crimes, and if, strictly speaking, a French or British Court has ho right to deprive a German officer of the renk conferred upon him by the German sovereign or the German State, nerhaps it may assume that right, acting for the League of Nations and in virtue of the

treaty which makes it in effect the League's mandatory. It would then represent the judgment, of civilised nations in arms upon German methods of conducting war, fix an international standard, and on behalf of a decent humanity brand as unfit any "officer and a gentleman", in an army the. men who undertook to put those methods into practice. The moral effect in\ Germany might be .admirable. DELIBERATE RIGHTFULNESS. i Proved cases, of deliberate frightfulness in Belgium and elsewhere under orders of local officers or of Berlin— Kissing or the Great General Staff—, would produce a similar legal. situation. The offences arc flagrant, and tho outrage- to civilisation intolerable. Tho difficulty here would be to obtain legally adequate evidence against the individual, because so many of the witnesses are' dead, and so many documents have been destroyed. It is ■ hardly to ba doubted, however, that Belgian military tribunals will be able to bring to justice at least' some of the men responsible for what was done at Lo'uvain. British army officers pointed out that one of the offences that could be reached, and reached effectively,, was the maltreatment of prisoners of war in Germany. They said that the evidence against certain of the German commandants of _ these prisoners was complete and convincing, that the offence was one definitely recognised in military law, that feeling on the subject was bitter, and that severe penalties. would almost certainly be inflicted by the courts-mar-tial.- In cases of unusual brutality and cruelty death might be the penalty,' but a British officer of rank and authority thought a "lot of "the brutes would bo sent to Devil's Island." In the German prison camps, he said, the trouble -seemed,^ net the Prussian system {though Allied prisoners were never adequately, fed, except when food was supplied I them from Allied sources), but the" individual in charge. The German commandant might be as decent a gaoler as ' the nature oi the gaoling let him be, or he might.be as bad as he chose. Tho bad ones were marked down on the British and French lists, AEEIAL BOMBARDMENTS. As to certain spectacular German' offences against civilisation, including the bombing of British and French towns from the air and the killing of women and children in Zeppelin raids, the general opinion among officers, both of the British and American Army, appeared to be that the Military. Courts would hardly be able to find a way to punish many of the actual bombers. To be sure, aerial bombardment was forbidden by international agreement, an article subscribed to by all the great Powers except the United States, and to be sure also the Germans began the air-raids on so-called open towns distant from the front, but the English, French, and Americans adopted the practice as retaliation, and it became a regular routine on both sides. And the so-called open towns, even when they Have neither arsenals nor forts, have factories, docks, or railway yards used, or likely to ■be used, for' " military purposes." It would be hard to .prove that an aviator who dropped a bomb on a school in England and killed a couple of little girls did not have as his objective, say, the railway line a few hundred yards away^ Bomb dropping from planes at night is not yet an exact science.

In this case the British Court-martial might undertake, however, to punish the man who ordered the raid—especially the first raid. It was an illegal act in interfrational law—expressly declared to be so —and the fact that in reprisal the same illegal act was committed by the British themselves did not, lawyers pointed out, confer legality upon the original act or deprive the Court of the right to punishit as such. As to what the penalty might be British officers were not clear.

In fact, after four years of a war, in which aircraft have played an ever-in-creasing part, military opinion seems to have, accepted bombardment from the air as a routine part of military operations. Any Military Court assembled in the ■ year 1919, even under the auspices of the Treaty of Peace and the League of Nations, will be apt to be swayed rather by the known and familiar " custom of war " in this case than the mere letter of a universally disregarded convention.

Bombing Red Cross Hospitals was admitted to be in a slightly different cate--gory. Deliberate intent to'hit the hospital might, be hard to prove, but if proved it constituted .an offence . clearly punishable. The same was true of submarined hospital ships, and in this case, British officers said, orders' found on captured U-Boats might supply evidence enough to convict some persons high in !' the German Naval Staff as ■ guilty of authorising and directing a practice in absolute conflict with the rules of war accepted by all nations. The German would plead, of course, that the British were using hospital ships illegally as transports, and, even in the face of proof to the contrary, might still say that he was informed and believed that this was the case when he gave the order. Whether the Court would regard that plea as valid is another question. THE FRYATT AND CAVELL CASES. In two conspicuous cases where by the terms of the Treaty the trial of the offenders would fall to British military courts, British officers whose opinion was invited did not think' any punshment could legally be inflicted. These were the cases of Captain Fryatt and Edith ..Cayell. Each was found guilty of a definite offence against German military law by regularly constituted courts', and •while.the infliction of the death penalty in both case 3 was barbarous and foolish, the courts could hardly in the circumstances have done otherwise than find the accused guilty as charged. Fryatt, a merchant captain, did .attack and'sink, a submarine—a warship. That act constituted a capital offence against German naval law. Miss CaveU, living under German military government, did give aid and comfort to the enemy in conveying out of the country men to join the Allied army and necessarily possessed of information of value to the enemies of Germany. Military law in wartime does not stick at the death penalty fori offences, of that. sort. However, it may be said that the reviewing authority which confirmed the sentence in each i case is really, responsible, and that ac- I tion by a military tribunal might lie. THE LUSITANIA. Finally, there is the sinking of the Lusitania. _ The U-boat captain who did that job is generally believed to have , gone already to his account. • The legality of the mere act of sinking the ship has been argued pro and cop at length.Considered as involving an enemy mer- , chant vessel partly laden with material of war, and omitting from view the principal fact—the thousands of human lives she carried —tho case is perhaps not crystal c.lear. But the elemental and outrageous atrocity of the d-eed remains. The order to sink the ship was atrocious, the act of sinking her was atrocious, the scheming to make- sure that the Üboat did not miss the quarry was atrocious, As a matter of mere justice (as apart from militai'y law), most people will agree that all concerned are touched with a, guilt which ought not to go scathless. American military law would hold the Order not only atrocious, but illegal, and it would not absolve the U-boat commander of guilt because ho obeyed an illegal order. But the measure of the legality of the order in the U-boat commander's mind was made in Germany, and equally made in Germany was his ' sense that all orders were to be obeyed.

The court, whether British, or American, or mixed, would almost certainly give a certain consideration to this feature of the case. British officers said frankly that they' did not think a British court would condemn the commander of the U-boat. They seemed doubtful—in a purely military legal sense—of the case against the German Admiralty, though "perhaps they might get old Tirpitz." It is only fair to add that this British military opinion was not shared by a man familiar both with the facts and the international legal aspects of the case. He thought that, •in the case of the Lusitania, as in that of the enslavement, of the women of Lille, Roubaix, and Tourcoing, the action of the court would be certain to reach out for the authors, instigators, and contrivers of tho deed—the men in the German Admiralty who planned it, who advised and urged it, as a means toward frightening Americans into stopping the munitions export business to the Allies, and those who, on this side of the ocean, assisted by spying and otherwise, in carrying out the atrocity—as, for instance, Bernstorff, Dernburg, and Boy-Ed.