ATROCITY TRIALS.

Taranaki Daily News, 23 August 1919, Page 10

ATROCITY TRIALS.

SHEETING HOME THE BLAME, POINTS OF THE LEGAL PROBLEM. SUMMARISED OPINIONS. Persons accused of having committed a.ctj in violation of the laws and customs of war are to be 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 Governments, either jointly or severally, all persons so accused and all documents and information necessary to insure full knowledge of the incriminating acts, the discovery of the offenders, and the just appreciation of the responsibility.—Extract from Section VII. of Peace Treaty. The following article is slightly condensed from an American 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 armios are naturally interested in the questions raised by the decision to punish these offenders through military tribunals: and \inder military law, and n6n-miiitary persons probably find their interest in what military law can do and how it does it considerably stimulated. ' J

MILITARY JURISDICTION. Acoording to the Manual of Courtsmartial for the United States Army, military, jurisdiction is of four kinda; (a) Military Government (the law of hostile occupation); that is, military power exeresed 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 ceded 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 countary retaining their allegiance and over persons and things not ordinarily subjected to it. (This particular form of military jurisdiction does not apply as between the Germans and the Allies or the League of Nation.'.). (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 to the doctrine of necessity to a condition of war—they are emergency powers, deduced from the right of self-. preservation).' (d) Military Jaw; which is the legal system that regulates the government of \he military establishment law i<s "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 of 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 dti\*h 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 military latv being a law apart.

THREE CLASSES OP OFFENDER. lawyers in discussing the subject point out that violators of the laws and customs of war—the laws and customs of civilised nations at, war as distinguished 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 tho 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 Turcoijig, when under orders posted in those towns by the German eommandatitur, soldiers went through the streets by nignt—it was ou Easter Monday, lfllh—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 Raid, 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 trial. Among the accused, according to the opinion of a man familiar with the French view of the situation, will undoubtedly he the German commander who signed the posted order or who was responsible for it. Among them also will bu individuals—lioldiors or others—who carried out the order, and in doing ao committed acts of brutality or outrage. 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 LIKELY. In view of the magnitude of the crime and the peculiar atrocity of the offence against the laws of war and the decencies of civilisation charged, the death penalty will, this authority says, certainly be asked for and vory'like'ly 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 can bo expected to shrink from the logic of the situation or shirk its duty to humanity by lolling him elf. 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 machine-gun bullets, and the evidence will be difliciilt to collect because so many of the women also succumbed to the hardships to which they were subjected—so that perhaps the number actually put to death after all will be a very small proportion of those who shared iu the guilt-

It has 1)0011 suggested that in the case nf officers—especially liijrliei* officers —the military courts will degrade, the officers found guilty of certain olfences —publicly and ceremoniously deprive him of his rank before inflicting the death penalty. That is the practice of European armies hi case of their own officers who commit disgraceful crimes, and if, strictly speaking, a French or British Court has no right to dqirice a German officer of the rani; conferred upon him by the German sovereign or the German State, perhaps it may assume Ihat 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 amis 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 FRIGHTFULNESS. * Proved cases of deliberate frightfulness in Belgium and elsewhere under ordero of local officers or of Berlin— Biasing or the Great General Staff—would produve a similar legal situation. Th" olfences are flagrant, and the outrage to civilisation intolerable. The difficulty here Would be to obtain legally adequate evidence against c.ie individual, because so many of the witnesses are dead, and so many documents have, been destroyed. It is hardly to bq~ doubted, however, that Belgian military tribunals will be aide to bring to justice at ieaat some of tiie men responsible for what was done at Louvain.

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 tha 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-martial, in cases of unusual brutality and cruelty death might be the penalty, but a British officer of rank and authority thought n "lot of the brutes would be sent to Devil's Island." In the German prißon camps, he said, the trouble seemed, not the Prussian system (though Allied prisoners were never adequately fed, except wiien food was supplied them from Allied sources), but the individual in charge. The German commandant might be as decent a gaoler as the nature of the gaoling let him be, or he might be as bud as he chose. The had ones were marked ddwn on the British and French lists.

AERIAL BOMBARDMENTS. As to certain spectacular German offences against civilisation, including the bombing of British anil 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 tli« actual bombers. To be sure, aerial bombardment was forbidden by international agreement, an article suii-cribcd to by all the great Powers except the United Stales, and to be sure also the Getmr.ns began the air-raids on so-called open towns distant from the front, but tiie 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, havo factories, docks, or railway yards used, or likely to be used, for "military purposes." It would he 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 scionce. 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 international 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 punish it 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 1019, 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 ease than the mere letter of a universally disregarded convention. , Bombing Pied Cross Hospitals was admitted to be in a slightly different category. 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 thj German Naval Staif as guilty of uu. thorising 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 ship's illegally as transports, and, even in the face of proof to the contrary, might still pay 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 ofticers whose opinion was invited did not think any punishment could legally be inflicted. These were the cases of Captain Fryatt and Edith Cavcll. Each was found guilty of a definite offence Against Herman military law by regularly constituted courts, and while the infliction of the death penalty in both cases 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 Cavell, 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 for offences of that sort, However, it may be said that the reviewing authority which confirmed the sentence in each case is really responsible, and that action by a military tribunal might lie.

THE LTJSITANIA. Finally, there is -the sinking of the Lusitaiiia. The U-boat captain who did that job is generally believed to have gone already to his account. The legal. ity of the mere act of sinking the ship, has been argued pro and con at length.: Considered as involving an enemy merchant vessel partly laden with material of war, and omitting from view the prin- j cipal fact—the thousands of human lives she carried —the case is perhaps not crystal clear. But the elemental and outrageous atrocity of the deed remains. Tin order to sink the ship was atrocious, the act of sinking her was atrocious, the scheming to make sure tiiat the Üboat did not miss the quarry was atrocious. As a matter of mere justice (as apart from military 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 he obeyed an illegal order. But the measure of the legality of the order in the U-boat commander's mind was made in Germany, j and equally made in Germany was his sense that all orders were to be obeyed. Tha court, whether British, or American, or mixed, would almost certainly grve 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 Lusirania, as in that of the enslavement of the women of Lille, Roubaix, I and Tourcoing, the action of the courv would be certain to roach out for the authors, instigators, and contriver? of] the deed—the men in the German Ad- j miralty 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, Dernberg, and Boy-Ed.