APRIL 8, 2019
Never before or after have the leaders of the world’s most powerful nations devoted so much time about criminal law and individual responsibility.
— William Schabas
NOT MANY AUTHORS can write a compelling book about an event that never happened. Yet, William Schabas has done exactly that in his new book, The Trial of the Kaiser.
Following the armistice that ended World War I, the Allied victors adopted a series of treaties at the Paris Peace Conference, setting the terms that would end the war. An important question of the day was whether to bring the defeated German Emperor Kaiser Wilhelm II to trial. Britain, France, and Italy pressed to investigate and prosecute him for war crimes, as he was viewed as the individual most responsible for the war. The United States resisted. In describing the contentious debates and this earliest attempt by the international community to prosecute crimes of war, Schabas shines light on arguments that continue to animate international law today.
The Allies ultimately agreed to bring the Kaiser to trial. It was a radical shift. The very notion of holding a leader responsible for crimes committed in conflict was unprecedented. At the time, military action, of whatever nature, was viewed as a legitimate instrument in the service of national interest. As argued by then US Secretary of State Robert Lansing, almost any atrocity was permissible if “national safety” was involved.
Article 227 of the Treaty of Versailles stated that Kaiser Wilhelm would be tried by an international court for the “supreme crime against international morality and the sanctity of treaties.” It would be the first time in history that nation-states imagined the possibility of an international criminal tribunal. But in the end, it was an effort that fell short. Kaiser Wilhelm was never brought to justice. He lived out his remaining years in the Netherlands.
Nevertheless, the idea was affirmed that an international criminal court might exist for the purpose of bringing individuals, including former heads of state, to justice for committing the most nefarious crimes. Today’s International Criminal Court (ICC) is a testament to that early vision. And that is what makes this book fascinating.
Schabas combines renowned expertise in international law with the perspective of a gifted historian. The Trial of the Kaiser is meticulously researched and brings gripping insight to the origins of international criminal justice, unearthing the roots of today’s codified and customary international criminal and humanitarian law. It recounts the history of the very first time world leaders and international lawyers began contemplating an international criminal tribunal. Moreover, the book resonates with modern parallels by touching on fundamental issues that still fuel debate among scholars and nations.
Some of the most compelling aspects of the book are the views — many draconian — expressed by the United States on issues of international justice. Not much has changed in the past 100 years. With the election of President Trump, the inclination to attack international bodies, including the ICC, has been relentless and brutal. Trump’s National Security Advisor, John Bolton, used inflammatory rhetoric to declare the ICC “illegitimate” and threatened the arrest of Court personnel if it pursued criminal charges against US military and intelligence staff for alleged war crimes committed against Afghanistan. Despite the added belligerence, such threats echo the views on display a century ago. It was the United States that so adamantly opposed the idea of an international court to try the Kaiser. The United States did not want to see Americans prosecuted by an international court — a position it continues to hold today.
The argument was part of a larger, and growing, sentiment of American exceptionalism that resonated during the Paris Peace Conference.
For example, the issue of whether there should exist in law “crimes of aggression” was a central point of debate during the Conference. Some experts argued that “the legal prohibition of aggressive war had crystallised” and was inviolable. But as Schabas explains, international law was in flux until the outbreak of World War I, and the notion that a state could be held accountable for starting a war was unsettled, at best. This was certainly the view of the United States who adamantly opposed even the existence of “crimes of aggression.” The responsibility for provoking war was not a legal issue, but something best left for historians to debate.
It wasn’t until the Nuremberg-Tokyo trials that “wars of aggression” would be prosecuted. While this proceeded with full US support after World War II, later the United States would steadfastly oppose including the crime of aggression in the statute of the ICC.
Schabas also probes the issue of immunity for heads of state by looking at how the Allies struggled to justify trying the Kaiser. The Allies were divided over the issue. The British government was adamant that the Kaiser should be held personally responsible for his crimes against international law. Others, including the United States, disagreed.
Britain, France, and Italy pushed US President Woodrow Wilson for his support, but Wilson was reticent. Wilson was not convinced that the Kaiser was personally responsible for the war or the prosecution of it. He stated that the Kaiser was “probably a victim of circumstance and environment. In a case of this sort you can’t with certainty put your finger on the guilty party.” This justification for inaction is eerily similar to the views of some of our current world leaders.
In the end, it was decided that rank should not protect an individual from being held to account for crimes he committed. This principle has proved enduring. When the ICC was created, Article 27 of the statute stated, in part, that the law “shall apply equally to all persons without any distinction based on official capacity…” [emphasis added].
Although customary international law, as expressed in the ICJ Arrest Warrant case,  keeps open the possibility of impunity in limited circumstances among states, the principle of accountability, even for heads of state, stands today. Notably, this was reaffirmed in a landmark case decided by the UK House of Lords when it found that former Chilean President Augusto Pinochet was not immune from prosecution for the crime of torture. Torture is an act for which state officials can never claim immunity.
Schabas devotes considerable attention to the Allies’ debate about whether persons in leadership positions (both military and civilian) can be held responsible for the crimes of their subordinates, particularly if they were aware of crimes being committed but did nothing to stop them. In essence, if a head of state cannot be criminally charged for starting a war, can he be held accountable for egregious crimes wilfully committed by subordinates?
Today, 100 years later, this notion of liability is commonly referred to as “command responsibility.” The doctrine is well established and accepted. It is codified in the statute of the ICC and was employed by the international criminal tribunals for both Yugoslavia and Rwanda. It is used to hold commanders criminally responsible for atrocity crimes perpetrated by their subordinates, even when there is scant evidence that a leader actually ordered the crimes. Bosnian Serb political and military leaders Radovan Karadžić and Ratko Mladić, Serbia’s Slobodan Milošević, and Liberia’s President Charles Taylor were all indicted under this principle. The process of working out the attribution of crimes to the Kaiser for crimes committed by soldiers laid the foundation for these later cases that established the “effective control” test for command responsibility.
International justice is deeply rooted in moral sensibilities. The core of the Nuremberg trials, which focused on the Holocaust, was on crimes that “shocked the conscience of humanity.” The ad hoc criminal tribunals for the former Yugoslavia, Rwanda, and Sierra Leone all spoke about contributing to “the restoration and maintenance of peace.” The tribunal for Cambodia went even further, describing its mission as “the pursuit of justice and national reconciliation, stability, peace and security.” The preamble of the ICC speaks of the “delicate mosaic” that unites all people by “common bonds” that can instantly be shattered by “unimaginable atrocities.” All of these tribunals were, and are, premised on the aspirational goal of bringing about a better world through justice.
Schabas shows that this faith in justice, with its corollary use of moralistic language, actually began 100 years ago when the world contemplated, for the first time, the creation of an international criminal tribunal. The trial of the Kaiser was described by former British Prime Minister David Lloyd George as “a great question of universal conscience of mankind […] It was a matter of universal sentiment which touched the highest moral laws.” Holding the Kaiser responsible for the atrocities committed during the war before an international court was seen by Britain, France, and Italy as a moral imperative. The United States objected.
In 1919, as today, there was hope that international justice and accountability would also prevent conflict. In discussions around the proposed trial of the Kaiser, the notion of seeking accountability to prevent others from acting was paramount. The deterrent effect of trials and prosecutions was front and center of the debate; the prevailing thought was that the trial would be a “solemn warning to any future aggressor.” As Lloyd George stated, the trial of the Kaiser would “initiate the principle that the rulers of the future would be held personally responsible for their acts.” Today, the ICC’s statute sets forth the same goal: “[T]o put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.”
Unfortunately, the “deterrent factor” has proven weak. The 20th century will be remembered for the over 200 million innocent civilians who perished needlessly due to war, internal armed conflict, organized extrajudicial killings, and as a consequence of repressive authoritarian state regimes  — and fewer than 900 persons have been indicted by international and regional courts for these crimes.  It’s a clear indication of states’ penchant to put political expediency ahead of justice and accountability.
Again, The Trial of the Kaiser provides insight. In the end, the United States refused to ratify the Treaty of Versailles, the Dutch declined to hand over the Kaiser, and even the British and French lost enthusiasm for the trial.
International justice is not perfect, and the larger challenge is a lack of universal support. The United States, Russia, China, and Israel are not State Parties to the ICC. The UN Security Council, mandated to maintain international stability, is deaf to the Court’s requests for assistance in enforcing arrest warrants. International justice is also expensive. The ICC’s annual budget exceeds €148 million ($170 million),  and many may argue that this is money better spent on rebuilding post-conflict societies. Finally, international justice is not equitable. The powerful can often escape accountability; the powerless cannot.
Still, to think about international justice is to consider the victims — those whose voices are silent or who have survived inhumane acts. I think back to 1999 when I stood among a sea of 20,000 people at the Stenkovic refugee camp outside Skopje, Macedonia. I was there to assist in documenting victims’ accounts of rape, torture, and execution at the hands of Serbian troops. I remember being struck by their common yearning for justice. They wanted those responsible for their suffering, including the leaders who orchestrated the atrocities, to be held accountable. They wanted to see justice prevail. And how justice is perceived is one of the most poignant parts of this book.
Schabas describes the Kaiser, a beleaguered figure, waiting anxiously at a train depot on the Dutch border, hoping to be granted asylum. Schabas quotes Winston Churchill, who described the Kaiser thus: “A broken man sits hunched in a railway carriage, hour after hour, at a Dutch frontier station awaiting permission to escape as a refugee.”
This image of a defeated leader responsible for inhumane acts is powerful. Watching former military and political leaders, thought to be impervious to justice, stand in the docks of an international court, dismayed and confused, is a remarkably emotive experience for victims. The victims realize that their voices are finally being heard. There will be no exculpatory evidence to absolve the guilty; they will, at last, be held to account.
Schabas’s book reminds us that the planned trial of the Kaiser was the impetus to today’s international justice system. And although imperfect, international, regional, and national war crimes tribunals have become the norm. They are the vanguard of today’s focus on accountability for egregious crimes.
 See Mark Ellis, Sovereignty and Justice – Balancing the Principle of Complementarity between International and Domestic War Crimes Tribunals, Cambridge Scholars Publishing (2014).
Also M Cherif Bassiouni, “Assessing Conflict Outcomes: Accountability and Impunity” in M Cherif Bassiouni (ed) The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice, 2 Vols. (Oxford: Intersentia, 2010), Vol. 1.
 Id. The exact number was 823. Between 1945–2008.
 From the ICC – Assembly of States Parties, Report of the Committee on Budget and Finance on the work of its thirtieth session, December 5–12, 2018, available at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP17/ICC-ASP-17-5-ENG.pdf