The Failure of the Leipzig War Crimes Trials

In the aftermath of the First World War, a quarter of a century before the Nuremberg and Tokyo war crimes trials, Britain, France, and other Allied or Entente powers conducted a bold experiment in international justice. Widely denounced as a failure, and barely remembered today, the experiment has important lessons for international justice in a world once again dominated by war.

At the end of June 1918 the Canadian hospital ship HMHS Llandovery Castle, steaming from Halifax in Nova Scotia to Liverpool, was torpedoed by the German U-boat U-86. According to the official report: 

The ship went down within ten minutes of being struck, and for upwards of two hours the submarine repeatedly attempted to blot out all traces of the deed by rushing to and fro among the wreckage and firing twenty shells or more from the large gun they carried. Only one boat with 24 survivors escaped. This crime surpassed in savagery the already formidable array of murders of non-combatants by the Germans. 

On board were more than 100 medical personnel including 14 nursing sisters. One survivor later recalled: ‘A few seconds later we were drawn into the whirlpool of the submerged afterdeck, and the last I saw of the nursing sisters was as they were thrown over the side of the boat.’

News of the sinking of a hospital ship and the U-boat captain’s callous efforts to silence surviving witnesses provoked outrage. A Canadian officer leading infantry into battle on the Western Front ordered his men to cry ‘Llandovery Castle!’ as they drove bayonets ‘into the Hun’. War-time atrocities such as the sinking of passenger ships by U-boats and the poor treatment of prisoners of war incited populist demands in France, Belgium, and Britain for revenge and the imposition of a ‘Carthaginian Peace’ on Germany. Instead of bayonets, however, in the aftermath of the armistice, the victorious Allied powers turned to law. Three years after the Llandovery Castle was sunk, two junior officers of the U-86 stood before the German Reichsgericht (Supreme Court) in Leipzig accused of war crimes. The captain, Helmut Brümmer-Patzig, had fled to his hometown of Danzig beyond the jurisdiction of the court.

While the Nuremberg trials of Nazi war criminals loom large in histories of international justice, few remember the ‘Leipzig trials’ or recall that the Treaty of Versailles, which was adopted on 28 June 1919, provided for the extradition, arrest, trial, and punishment of alleged German and Turkish war criminals. At legal and diplomatic levels, the Allies obsessed about prosecuting Kaiser Wilhelm II who, following the armistice, had abdicated and fled to the Netherlands. Article 227 of the Treaty proposed the establishment of an international tribunal, presided over by judges from each of the major Allied powers – Britain, France, Italy, United States, and Japan – to try the kaiser for a ‘supreme crime against international morality and the sanctity of treaties’. Today, the vulnerability of heads of state to prosecution is broadly accepted and the list of those who have been prosecuted is quite long: think of Liberia’s president Charles Taylor, Omar Al Bashir of Sudan, and Serbia’s Slobodan Milošević and Bosnian Serb leader Radovan Karadžić. Several have been charged and some have gone to prison for lengthy terms. But in 1919 the legal pursuit of the kaiser was unprecedented: a century earlier, Napoleon was sent into exile, not hauled into court. As it transpired, the kaiser was never arrested and war crimes trials were staged not before an international court but, reluctantly, by a German one. A handful of minor alleged offenders, such as those junior U-Boat officers, ended up in court: the ‘big fish’ like the kaiser, Hindenburg, and Ludendorff escaped justice.

New justice

The Versailles Treaty and the war crimes trials that were staged by the Allied powers in Leipzig and Constantinople in 1921 were pivotal in the history of international criminal law but are now largely forgotten. The legal historian William Schabas characterises the period after the First World War as a ‘half formed trail, muddy and soon rather overgrown’. The Treaty and the ramshackle trials that followed were experiments in law-making that soon came to embarrass the Allied war leaders. Recalling the Leipzig trials years later, British foreign secretary Anthony Eden was mortified by the ‘ill-starred enterprise’. British memory of Leipzig would fuel scepticism about American-led plans to put Nazi and Japanese war criminals on trial before international tribunals following the Second World War. What had gone wrong?

When the victorious powers met at the Paris Peace Conference in 1919, five of the treaties adopted included clauses providing for the criminal prosecution of individuals who had served in the armies of the defeated Central Powers. The defeated parties would be required to surrender suspects for trial. No earlier peace treaties had contained such provisions. The emergence of what has been called the ‘new justice’ at the Paris Conference can be explained by a number of factors. European nations had endured four years of war with massive loss of life and untold damage to territory and cultural artefacts. On the Allied side, many lawyers, academics, and criminologists joined forces to demand that international law should be invoked to reaffirm the international order and the norms of civilisation. German militarism was blamed for numerous abuses of such norms by disrupting the balance of power, violating Belgian neutrality, and a succession of widely reported atrocities. Germany became in effect an ‘outcast nation’. The final report of the Allied ‘Commission on the Responsibility of the Authors of the War and the Enforcement of Penalties’ accused Germany of ‘piling outrage upon outrage’ and listed no fewer than 32 such outrages from murders and massacres to the poisoning of wells.

Since the 1860s European lawyers had expanded the scope of the laws and customs of war through the Geneva (1864) and Hague Conventions (1899, 1907) to protect civilians and prisoners of war and to limit the use of certain weapons such as poison gas. After the outbreak of war in 1914, the Hague Conventions had been flouted by most of the combatants (both Britain and France had used poison gas) as well as Germany. However, it was the opinion of many jurists of the victorious Allied powers that Germany, in the words of one British lawyer, had not merely disregarded the laws of war but used ‘frightfulness’ as a method of warfare. The ‘new justice’, it was argued, provided a means to rebuild the norms and values of civilisation in the aftermath of a catastrophic conflict.

Germany was regarded as a ‘state violator’ and many believed that Germany’s offences were so monstrous that only an ‘elevated jurisdiction’ – in other words, an international court of some kind – could, as Louis Renault, the French legal representative at the Paris conference, put the matter, offer a ‘solemn and purifying sanction demanded by public conscience’. The phrasing is significant. Throughout the war, reports of German and Turkish atrocities had inflamed popular opinion and the war-weary citizens of the Allied powers were baying for blood. A land ‘fit for heroes’ would also be one that punished its foes. What they would be offered instead would be the full force of law. In the words of a popular British song:

It’s a job we never started,
But we’ll finish Germany;
And we’ll hang you Kaiser Wilhelm
On the highest linden tree.

Legalised vengeance

As German war leaders and politicians divvied out blame for the capitulation of their armies in November 1918, the leaders of the victorious Allied powers began debating how to bring the kaiser and other German war criminals to justice for launching a war of aggression and committing ‘atrocious crimes’. These included the sack of the Belgian town of Louvain, the execution of the British nurse Edith Cavell, the trial and execution of merchant marine officer Captain Charles Algernon Fryatt, harsh treatment of prisoners of war, and the sinking of passenger and hospital ships such as Llandovery Castle. During the war, public opinion in Allied countries was inflamed by insistently publicised reports of German beastliness, but while the war was still being fought Allied leaders feared to promise legal reprisal in case Germany won the war and established its own war crimes tribunal. Many worried that the threat of punishment for alleged war crimes would compel Germany to keep fighting.

When Germany capitulated, the floodgates of legalised vengeance burst wide open. As elections loomed in the aftermath of victory, ambitious and vote-hungry war leaders David Lloyd George and Georges Clemenceau hitched their political bandwagons to the ‘irrepressible wrath’ of British, French, American, and Belgian public opinion. Among war-weary citizens, news of the armistice cooked up a seething cauldron of emotion fuelled by a long charge sheet of enemy atrocities. The main target of this very public rage was Wilhelm, who had long been demonised as a war monger. The vengefulness of public opinion in different countries was proportional to their suffering. The Belgians, French, and British were most vociferous calling for war crimes trials, Americans, despite the sinking of the Lusitania in May 1915, were more tentative.

British prime minister David Lloyd George led the charge, insisting that ‘war was itself a crime against humanity’ obligating the ‘infliction of punishment’. In France Clemenceau focused his ire on the hated kaiser. The British duly amplified French sentiments: Lord Curzon declared that ‘the kaiser is the arch criminal of the world’. ‘Why do the British hate me so?’ lamented Wilhelm from exile in the neutral Netherlands. The average Englishman, Belgian, or Frenchman would have been keen to have the kaiser strung up or shot. But in the British Cabinet reverence for the due process of a fair trial – legalism –prevailed. Lloyd George insisted that the kaiser was guilty of a criminal offence: ‘I think he ought to stand his trial.’ There were dissenters, including Winston Churchill, then minister of munitions, who feared that adhering to ‘justice and law’ might let the kaiser off the hook. Churchill would express the same doubts years later when the Allies debated the fate of the Nazi leadership. The War Cabinet’s doubts were eventually silenced by the attorney general Frederick Smith who, without using the modern term, insisted on the kaiser’s ‘command responsibility’. In other words, he was ‘primarily and personally responsible’ for millions of deaths.

Guilty of what?

At the Paris Peace Conference the first item on the agenda was the punishment of war criminals. German delegates protested bitterly but on 28 June 1918 Germany was compelled to sign the Treaty of Versailles, which included four ‘punitive clauses’ on war crimes. Article 227 indicted the kaiser for a ‘supreme offence against international morality and the sanctity of treaties’; Article 228 required that Germany surrender other Germans who had violated the laws and customs of war.

Germany was not the only state in the dock. The British led moves to prosecute Ottoman officials, known as ‘Young Turks’, for the massacres of Armenians in 1915. The legal concept of genocide did not yet exist but some outraged commentators on the ‘infamies of the Turk’ came very close. In the House of Lords, Lord Williams denounced the atrocities as ‘government by massacre … systematically to exterminate a whole race out of their domain’. When British delegates drew up a list of suspected war criminals at the Paris Peace Conference, they added a separate category of nine Turkish leaders accused of ‘systematic terrorism’. There was a long British tradition of denouncing ‘Turkish’ cruelties against Christians but the campaign to bring the perpetrators of the ‘Armenian massacres’ to account was legally innovative. In the shattered carcass of the Ottoman Empire, British officials backed by a huge army of occupation began arresting scores of perpetrators. Using the term for the first time, Russian minister Sergei Sazonov denounced the Young Turks’ perpetration of a ‘crime against humanity’.

Even in this noisy tumult, legalism prevailed. If, as Lloyd George insisted, the kaiser had committed criminal offences, what crime had he actually committed? That was difficult. ‘You cannot indict a man for making war’ objected the Australian prime minister William Hughes. Proving that the kaiser had started the war threatened to stir up uncomfortable questions for the Allies. Others, including the chancellor Austen Chamberlain, feared – rightly as it turned out – provoking a backlash among Germans: a ‘Hohenzollern legend like the Napoleonic legend’. When he heard the terms of the Treaty, the kaiser was terrified that he would be dragged like the ‘basest criminal’ through the streets of Paris or London ‘so that those bastards can cut off my head’.

When the Allies demanded that the Netherlands hand over the former German emperor, the neutral Dutch government refused point blank. A Dutch diplomat appealed to British sensibilities by likening the kaiser to a dog feared to be dangerous by its neighbours that would be restrained and cared for by his new owners. The British ambassador retorted that if the dog had severely bitten the neighbours and their children it should be chained up or removed from the neighbourhood. The Dutch government dug in its heels. Eventually, the British agreed to a compromise: the kaiser would be confined to his new home, the Dutch estate Huis Doorn near Utrecht, where he would reside in ignominious comfort until his death in June 1941.

Failure at Leipzig

In the meantime, battle lines were drawn around the other treaty obligation, Article 228. During the Peace Conference the Allied ‘Commission of Responsibilities’ had begun drawing up lists of German officials and immediately ran into difficulties. The first list compiled by Belgium, France, Britain, and Italy ran to a daunting 3,000 names. How could so many be fairly tried? And would the new German republic tolerate years of war crimes trials? The answer was almost certainly not and the numbers were whittled down. The British accused 97 individuals, including grand admiral Alfred von Tirpitz, of various allegedly criminal acts such as unrestricted submarine warfare, Zeppelin attacks on London, and mistreatment of prisoners of war. The reaction in Germany was shock and ‘passionate resentment’. In Berlin, the British embassy warned that the new government might fall. The German National Assembly responded by establishing a ‘Central Bureau of Germans Accused of War Crimes’, which compiled thousands of dossiers to assist any defence counsels. Furthermore, the Germans refused to extradite any German citizens on the Allied lists. And they had every right to do so: Germany had not surrendered but signed an armistice. In 1945 Germany’s unconditional surrender would give Allied prosecutors carte blanche at Nuremberg.

Once again, the Allied Commission beat a legal retreat; the numbers were culled again. It was Germany that offered the chastened Allies a lifeline. They proposed trying the accused in a German court: the Reichsgericht in Leipzig. There would be no international tribunal. In May 1920 the Commission handed the German government a severely pruned list of just 45 accused individuals. After a year of confused dithering the trials finally began in May 1921. Unsurprisingly, the German lawyers ran rings round the Allied prosecutors, who in many cases failed to offer the German court any persuasive evidence. By then, the list comprised just seven individuals, including the commanders of U-86 and a handful of officers alleged to have mistreated prisoners. Of these, three received sentences of a few months, three escaped, and one was acquitted. When the court considered the Belgian cases, a German secret police chief accused of torturing children was acquitted and Belgium withdrew its delegation from the trials in disgust. The French, also disgusted by the turn of events in Leipzig, retreated soon afterwards. It is no wonder that the British attorney general Sir Douglas Hogg realised that the game was up and proposed to let ‘the whole war criminals question sleep’.

The collapse of the Allied war crimes trials in Leipzig was abetted by US president Woodrow Wilson. He made it clear that ‘victors’ justice’ was unpalatable and despised demands for vengeance driven by public wrath. Instead, Wilson offered the European brokers of the peace a choice: vindictive trials of unprecedented crimes or the grand vision of a League of Nations that would preside over an international order founded on international law. During the Second World War it was the US that took the lead in persuading their Allies to indict rather than summarily execute the former Nazi leaders. At the end of the First World War Wilson and his advisers pulled the carpet from under the feet of Clemenceau and Lloyd George. The consequence of this experiment in law was a humiliating failure for the Allies, which outraged Germans, undermined the new Weimar Republic, and galvanised the early Nazi movement. Hermann Göring, who would end up in the dock at Nuremberg, first encountered Adolf Hitler at a far right rally protesting against the trials of German war criminals.

The British lawyers who became involved in the acrimonious legal debates that eventually led to the Nuremberg trials in 1945 were acutely aware of the problems that had scuppered war crimes trials after the First World War. After the armistice in 1919 the German empire was dismembered but Germany was not occupied. The Allies were not prepared to risk any lives if Germany could still resist attempts to have its leaders and soldiers turned over for trials. The kaiser was protected by the Dutch government. The Leipzig trials were a compromise that reflected Allied anxiety about the risks of enforcement. In 1945 the military prosecutors at Nuremberg had no such qualms. Germany was not only defeated, and had surrendered unconditionally, but it was also occupied by the Allied powers. Leipzig had been remembered and its lessons learned. Even great powers may not be prepared to risk the lives of their soldiers to pursue alleged perpetrators of war crimes. This would become a persistent problem in the Balkans in the 1990s.

Ottoman evidence

The lesson was reinforced when the Allied powers turned to the crimes of the Young Turks. Britain had military and naval resources in the region, and began applying pressure to the Sublime Porte to begin turning over suspects. In the meantime the major Young Turk leaders of the Committee of Union and Progress, who were responsible for the campaign against the Armenians and the massacres that resulted, had fled to Germany. Sultan Mehmed VI complied with the British, fearing persistent Young Turk agitation and a fast developing nationalist movement led by Mustafa Kemal Atatürk. The Ottoman interior minister and other Ottoman authorities rounded up no fewer than 107 suspects, including Said Halim Pasha, who had been grand vizier at the time of the massacres. ‘Very satisfactory’, reported Britain’s high commissioner.

Soon after the arrests, the Porte established a special court-martial in Constantinople and began trials of the alleged perpetrators under ‘Moslem supreme justice’. The court’s first judgment was to convict and sentence to death Kemal Bey, a district governor, who was duly hanged. The nationalists were outraged – and for the British and the Ottoman officials Kemal’s funeral, attended by thousands of wreath-bearing supporters, was a public relations disaster. As in Germany, the trials of alleged war criminals were deeply resented by ordinary citizens as concessions to the victorious powers. Nevertheless, the Ottoman trials staggered on in the teeth of mounting nationalist protest, resignations of officers and officials, and escaping prisoners. British dismay at proceedings came to a head when the court-martial sentenced the Young Turk leaders to death when none were in custody.

Two powerful factors conspired to dissipate Allied efforts to punish the perpetrators of the Armenian massacres. The Ottoman Empire was rapidly disintegrating and descending into civil war, and the British commitment to legalism meant that charges against the accused could not be sustained by hard evidence. By the time this was belatedly recognised, the British had transferred scores of Turkish prisoners to prisons in Malta. A Foreign Office diplomat confessed that a large number of these offenders would never be brought to justice: ‘We have practically no legal evidence.’ The majority were eventually released and in 1923 the Treaty of Lausanne, signed with Atatürk’s nationalist government, made no reference to war crimes. The British tried to forget all about the Ottoman fiasco – and forgot, too, the massacres they sought to punish.

Lessons

Today, the legal fiascos of Leipzig and Constantinople are rarely mentioned. As a consequence, the same mistakes were made in the Balkans in the 1990s and risk being repeated in the legal pursuit of Vladimir Putin and his circle, who are unlikely to be surrendered to a Western tribunal. In the very unlikely circumstance that Russia is defeated by NATO powers, Putin and anyone else threatened by international criminal law will undoubtedly have a choice of refuge in China, Iran, or North Korea. In hindsight, the prosecutors at Nuremberg had the advantage of learning from Leipzig and could act as an occupying power to secure arrests with little risk to Allied personnel. The same good fortune did not prevail in the Balkans and as a consequence the perpetrators were indicted and arrested in frustrating chaos. Whether international law will prevail in other theatres of armed conflict that have witnessed crimes against humanity and alleged genocide remains an open question shaded by doubt.

Christopher Hale’s Deception: How the Nazis Tricked the Last Jews of Europe was published in 2019.