DIFFICULTY OF APPLYING CRIMINAL LAW 475 ever, of the punishment of offenders belonging to the enemy's forces, but there is little doubt that every person guilty of committing such acts against American soldiers, would if apprehended be punished equally with those belonging to the American army.1 American practice during the Civil war was in accordance with this view.2 The British Manual of Military Law likewise enumerates a long list of war crimes which may be punished as such irrespective of whether they are committed by British soldiers or those belonging to the enemy's forces, except that those may not be punished for such violations of the recognized rules of warfare, as are ordered by their government or commander. The German Kriegsbrauch im Landkriege is none the less explicit on this point. It declares that the inhabitants of occupied territory must not be injured in life, limb, honor, or freedom; that every unlawful killing, every bodily injury due to fraud or negligence, every insult, every disturbance of domestic peace, every attack on family honor, or morality, and generally, every unlawful and outrageous attack or act of violence are just as strictly punishable as though they had been committed against the inhabitants of one's own land. It expressly prohibits all aimless destruction, devastation, burning, and ravaging of the enemy's country, and declares that the soldier who does such acts is "an offender according to the appropriate law." Finally, it declares that the seizure and carrying away of money, watches, jewelry, and other objects of value is considered to be criminal theft and is punishable as such.* § 584. Difficulties of Application. It being recognized that certain acts committed by soldiers during war in violation of the rules of international law are assimilable to ordinary crimes and may be punished as such, several questions are presented 1 Art. 71 declares in fact that "a prisoner of war remains answerable for his crimes against the captor's army or people, committed before he was captured and for which he has not been punished by his own army." 2 As is well known, William Wirz, commandant of the Confederate prison at Andersonville during the Civil War was tried by a military commission of the United States on the charge of brutal treatment of Federal prisoners. He was convicted and hanged November 10, 1865. Rhodes, History of the United States, vol. V, p. 506. Art. 443. • Morgan, War Book of the German General Staff, pp. 148, 162, and Carpentier, Les Lois de la Guerre Continentale (Kriegsbrauch im Landkriege), pp. 104, 121, 131. as to the practical application of the principle. May, for example, the courts of one belligerent try and punish offenders belonging to the forces of the enemy, and if so, shall it be the ordinary criminal courts or the military tribunals.1 Practically all the authorities are agreed that soldiers belonging to the enemy army may be tried by the courts of the opposing belligerent for crimes committed in violation of the laws of war in the latter's territory against the persons or property of nationals of the injured belligerent if they fall into his hands. And this is the view laid down in the military manuals and military penal codes. But in countries which follow the personal theory of jurisdiction their nationals are also punishable for crimes committed abroad. Thus, according to German law, a German soldier who committed a crime in the occupied regions of Belgium and France was liable to trial and punishment by the German courts. Could he also be tried and punished by a Belgian or French court? Renault, Pic, Garcon, Merignhac, Feraud-Giraud, and other French jurists maintain that jurisdiction in such cases is concurrent, that is to say, the courts of either belligerent may take jurisdiction, and the fact that the offender may already have been tried and punished by a German court does not deprive a Belgian or French court from trying him. Otherwise, offenders would often be insufficiently punished or not punished at all. It is well known that the German authorities during the late war not only approved the commission of various acts committed by German soldiers in violation of the laws of war, but even encouraged them, and the instances in which such offenders were tried and punished by the German courts were distressingly rare. The treaty of peace expressly declares that trial by a German court of Germans charged with violation of the laws of war shall be no bar to their prosecution before the courts of the allied powers.* 1 The treaty of peace provides that the military tribunals of the country of which the injured victim is a national shall have jurisdiction. Professor T. S. Woolsey thinks the trial of such offenders should be before a neutral or international court, Procs. Amer. Soc. of Int. Law, 1915, p. 67. Merignhac, however, advocates trial before a special court composed of judges representing only the victorious belligerents, Art. cited p. 55. 2 Beling, a German writer, in the Deutsche Juristen-Zeitung of February 1, 1915, however, denies that one belligerent may lawfully punish offenders belonging to the armed forces of the adversary. Cited in 43 Clunet, p. 72. • Renault, Art. cited p. 17; Pic, Art. cited p. 262; Merignhac, Art. cited p. 32. • Art. 228. PENAL CLAUSES OF TREATY OF PEACE 477 The right of the belligerent in whose territory, even if it be at the moment under the military occupation of the enemy, crimes are committed by enemy soldiers, to try and punish the offenders must be admitted in the interest of justice. The fact that the territory in which the offence is committed is at the time under hostile occupation would not seem to constitute a legal impediment to the assumption of jurisdiction by the courts of the country occupied, since under the modern conception of occupation there is no extinction of sovereignty but only its temporary displacement.1 In practice France has proceeded on the assumption that its courts may take jurisdiction of crimes committed by German soldiers within French territory under German military occupation. Some cases occurred after the close of the war of 1870-712 and there were many instances during the late war. The treaty of peace, as stated above, required Germany to deliver up to the Allies such offenders as they might designate. In accordance therewith a list of 890 persons or groups of persons was addressed to the German government and their surrender demanded. The British list contained the names of 97 persons against whom charges were preferred; the French list, 344; the Belgian, 334; the Polish, 51; the Roumanian, 41, and the Italian, 29. Among the accused were Dr. von Bethmann-Hollweg, former imperial Chancellor, field marshall von Hindenburg, generals von Ludendorff and Mackensen; Crown Prince Rupprecht of Bavaria, the Duke of Wurtemberg, and a number of other persons belonging to the 1 Nevertheless it may be remarked that the German International Society of Comparative Law and Political Economy maintains the exclusive jurisdiction of the military occupant. A soldier in enemy territory, it insists, is under the exclusive jurisdiction of the laws of his own country, and he cannot be punished by the courts of the opposing belligerent. Berliner Tageblatt, February 10, 1915, quoted by Merignhac, Art. cited p. 37. * Renault, Art. cited p. 18; Merignhac, Art. cited p. 35. On February 26, 1915, a German soldier was sentenced to death by a French military court at Rennes for pillage, incendiarism, and assassination of a wounded soldier on the field of battle in Belgium. Other cases are mentioned by Merignhac, Art. cited p. 35. In May, 1919, a former German captain committed suicide while being held for trial by a French court on the charge of looting in France during the war. In November, 1919, five officers of the German army were arrested by the French military authorities in Germany and returned to France for trial on the charge of pillage and robbery in French territory during the German occupation thereof. A press dispatch from Lille, dated November 20, 1919, stated that allied officers were searching for one hundred and fifty other Germans who were charged with similar offences. royal families; twelve admirals and many other army and navy officers of high rank including von Tirpitz, von Capelle, von Trotha, von Müller, and von Schroeder. The publication of the list evoked strong protest in Germany and Baron von Lersner, head of the German delegation to the Peace Conference, refused to transmit the list to his government and declared his intention of resigning. In the face of an opposition which threatened to render impossible the execution of the treaty provision, the Supreme Council agreed to a modification of its original terms and to allow the accused to be tried in Germany by the Reichsgericht at Leipsig. $585. Punishment of Crimes Committed in Foreign Territory. If there is no doubt that a belligerent has jurisdiction over crimes committed by enemy troops in his own territory, even though it be under hostile occupation, what shall we say as to his right to try and punish persons belonging to the enemy's forces who commit criminal acts against the soldiers of the former in a foreign country? Take, for example, the case of maltreatment by the Germans of a French soldier in a German prison or the receiving by persons in Germany of stolen property taken from France. There were many cases of this kind during the late war. Would a French court be competent to try the offenders in case they should subsequently fall into the hands of the French authorities? Renault distinguishes between offences of this kind committed within the zone of operations of the French army and those committed without such zone. The former fall within the jurisdiction of the French criminal courts, although they are committed in foreign territory; the latter do not. Under the French code of criminal instruction (Art. 7) offences committed outside French territory are punishable in France only when they constitute attacks against the safety of the state.2 Belgian law is the same (code of criminal instruction, Art. 10). M. Clunet thinks crimes committed by the enemy against French prisoners in foreign territory violate the public order of France and amount to an attack upon its authority; they might therefore be treated as crimes against 1 26 Rev. Gén. de Dr. Int. Pub. (1918), p. 28. * See the recent case of Wechsler, in which a French court took jurisdiction of an offence committed against the safety of the State by a Roumanian subject in Roumania. 44 Clunet (1917), p. 1745. CRIMINAL ACTS DURING WAR 479 the safety of the State and the offenders tried and punished by the French courts if they should fall into the hands of the French authorities.1 Obviously, however, this would be an unwarranted interpretation of the term "safety of the State," elastic as it is, and M. Clunet himself admits that it is a "bit subtle."2 Merignhac expresses the opinion that an interpretation which forbids the French courts from taking jurisdiction of crimes committed in foreign territory against French nationals (except those which constitute attacks upon the safety of the State) is reasonable enough in time of peace, but that in time of war, especially war conducted in the manner in which it was carried on by the Germans, a belligerent whose nationals (especially prisoners and hostages) are maltreated by the enemy should have the same right to punish such offences when committed in foreign territory that he has to punish offences against the safety of the State. Article 7 of the French code of criminal instruction should therefore be interpreted during war to apply to all crimes committed against French nationals in foreign territory. This question was recently raised in France under the form of the right of the French courts to take jurisdiction of certain Germans who were charged with having received in Germany stolen property carried away from France. As is well known, the Germans during their occupation of Belgium and the north of France despoiled many factories and other industrial establishments of their machinery and equipment, and sold it to German manufacturers who in turn utilized it in their own establishments for the manufacture of war materials and articles for civilian use. After the occupation by the allied troops of the Rhine province of Germany, following the Armistice, they found large quantities of this machinery and arrested, with a view to their trial in France, a number of German manufacturers in whose plants the machinery was found. The German government protested against the arrests on the ground that the seizure and transportation of the property in question to Germany was a lawful act of war entirely in accord with Article 23 (g) of the Hague convention respecting the laws and customs of war on land, which allows a belligerent 1 40 Revue Pénitentiaire (1916), p. 37. 2 M. Garraud thinks, and it would seem, properly, that M. Clunet's reasoning cannot be defended. Ibid., p. 38. 3 24 Rev. Gen. de Dr. Int. Pub. (1917), pp. 42-45. |