Between the Individual and the Collective: for a more encompassing history of individual criminal responsibility and the protection of civilians
Maja Spanu discusses the common history of protection and prosecution norms.
In the contemporary study of the ethics of war, revisionist Just War theorists and some lawyers have started to direct their focus on the rights and responsibilities of individuals. Critics claim that this focus is problematic, as it does not sufficiently appreciate the importance of collective structures, such as broader social, legal and political contexts, in which individuals are embedded. In any case, it is undeniable that individual rights and responsibilities have acquired a central place in legal, political, and moral discussions on war. Two developments, in particular, exemplify this “individualization of war”: first, the increasing focus on the rights of individuals as members of civilian populations that ought to be protected, and second, the increasing focus on the responsibilities of individuals accused of being guilty of war-related crimes.
While these developments are often presented as relatively recent and associated with the post-1945 development of human rights, I want to argue that the push towards an individualized approach to rights and responsibilities in war precedes the post-World War II era. As we are about to see, individual and collective understandings of rights and responsibilities in war have coexisted at least since World War I. The purpose of this short piece is to open space for a more encompassing historical account of the tensions that follow from this coexistence. To do so, I bring individual criminal responsibility and the protection of “vulnerable” populations into one discussion. From this viewpoint, the tensions between individual and collective rights and responsibilities in war appear more intertwined and older than we often think.
Criminal responsibility and the protection of civilians at the 1919 Paris Peace Conference
Differing from standard accounts, I suggest that by looking back at the 1919 Paris Peace Conference, we see that discussions on individual responsibility vs. collective guilt as well as debates on protecting populations were already present. At the Peace Conference, the coexistence of individual and collective understandings of the responsibilities of state/military officials and the rights of domestic populations crystallised in two separate spaces: first, the Commission on the Responsibility of the Authors of War and on Enforcement of Penalties, which combined discussions on the Laws of War and nascent international criminal law; and second, the Committee on New States and the Protection of National Minorities, which debated the creation of new states following the dissolution of Empires and the granting of specific rights to domestic populations deemed vulnerable.
In 1919, the Council of Four of the Paris Peace Conference (Italy, France, the US, and the UK) decided to bring together legal advisors from different Allied and Associated countries to form a commission that would assess the crimes and responsibilities of World War I. The Commission had four main tasks and was thus divided into four subcommittees. First, it had to determine whether heads of state and high officials could be held legally responsible for waging aggressive war. Second, the Commission had to report on violations of the laws and customs of war committed by the Central Powers. To do so, it was charged with gathering information from the fronts and occupied areas. Third, it had to determine the degree of responsibility carried by members of “general staffs” and other individuals (“no matter how highly placed”) for violations of the Laws of War directed at the Allied Forces. The Commission was to assess whether commanders, government officials, and heads of state were responsible for ordering violations or for failing to prevent them. Fourth, the Commission had to figure out what kinds of courts and rules could be used for prosecutions.
If, a priori, the tasks of the Commission seemed clearly defined, confusion quickly emerged. First, the separation of the tasks that every sub-commission had to deal with was not entirely obvious. Discussions on the possibility of trying the German Kaiser were a major issue of contention, but nowhere were the modalities of his extradition and prosecution discussed. Moreover, rather than debating actual measures, several committees ended up spending much time discussing the exact scope of their tasks. Second, views among legal advisors varied hugely. Unlike the US, most of the European delegates agreed, at least in principle, on the idea of prosecuting individuals for the crime of aggression. However, they did not necessarily agree on to how to do so or how to deal with other war-related crimes. At the time, moreover, no legal system existed to internationally prosecute individuals.
A third issue of contention was whether prosecutions for “crimes against humanity” should be part of the post-World War I settlement. Delegates in the Commission broadly agreed on prosecuting the crime of aggression and violations of the laws and customs of war as defined in nineteenth century treaties. However, the Canadian delegate on the Commission suggested that, in addition to these two crimes, the Central Powers should also be prosecuted for the commission of “crimes against humanity.” The term was used loosely and, with all the similarities, did not refer directly to Hersch Lauterpacht’s later definition. Interestingly, though, the idea of “humanity” did encompass reference to the earlier Marten’s Clause, as well as to Russia’s usage of the term in the context of the Armenian genocide (in May 1915, the Triple Entente had warned the Ottoman Empire that “in view of these new crimes of Turkey against humanity and civilisation, the allied governments announce … that they will hold personally responsible for these crimes all members of the Ottoman government as well as those of their agents who are implicated in such massacres”). Not all European advisors supported the creation of a legal category of “laws of humanity”. US Secretary of State, Robert Lansing, moreover, fiercely opposed the Canadian proposal. Similar to its position in the preparatory works of Nuremberg, the US disputed the idea of laws of humanity for two reasons: first, as they would imply the prosecution of crimes committed within the boundaries of a state; and second, as they would unfairly imply individual responsibility, whilst downplaying collective guilt.
Relatedly, another major point of contention in the Commission’s work was whether the agents to be prosecuted should be states or individuals. Was it possible to prosecute individuals only for specific crimes or should they be prosecuted for all crimes, despite national bureaucracies behind them? Should all individuals officially involved in war-related crimes be prosecuted, no matter their rank, or just heads of state? The issue that triggered most controversy was whether the individual that many regarded as the main culprit for the outbreak of World War I should be prosecuted: the German Kaiser. Among the Allies, views differed as to his degree of responsibility (and ensuing punishment measures). This, Mark Lewis reveals, was less because of clashing visions of international justice, than for personal and political interests. For example, David Lloyd George had already entered the British electoral campaign with the slogan ‘hang the Kaiser!’. Could the result of the trial be a different one? Even if less forcefully, other British and French delegates took similar lines. That, though, was not the position of the US. After all, punishment was not part Wilson’s post-war settlement plan. US delegates thus simply denied the legal possibility of internationally prosecuting heads of states.
In 1919, international law did not specifically allow for the protection or prosecution of individuals. The Paris peacemakers were therefore unable to legally enforce the international prosecution of the Kaiser, though they proposed that this should happen in some form. The compromise that was reached was to include article 227 in the Treaty of Versailles, which stated that a trial for Kaiser Wilhem II ought to be organised specifically for a “supreme offence against international morality and the sanctity of treaties.” This was not more than a statement and did neither include violations of the laws and customs of war, nor the “laws of humanity”. However, article 228 of the Treaty did refer to the right of the Allies to bring before military tribunals persons accused of having committed violations of the laws and customs of war. Ultimately, the Netherlands never extradited the Kaiser, arguing that they did not recognise in their legislation any of the points discussed in Paris. Still, the final report of the Commission on Responsibility, published in the American Journal of International Law in 1920, stated that:
“all persons belonging to enemy countries, however high their position may have been, without distinction of rank, including heads of states, who have been guilty of offences against the laws and customs of war, or the laws of humanity, are liable to criminal prosecution.”
In its report, the Commission proposed a legal order not so dissimilar from Nuremberg. After all, it suggested trying individuals, including heads of states, for violations of the “laws of humanity” by a high tribunal. It proposed that this tribunal would operate on the basis of an international law derived from the Marten’s Clause. The report did not necessarily mark a legal transformation – especially since collective sanctions were imposed on the losers of the war (see, famously, article 231 of the Versailles Treaty). However, the report did foster discussion on individual prosecutions. We should also remember that, even though repudiated by the Allies, German authorities did hold trials in Leipzig to judge alleged German war criminals. Although the Leipzig trials were widely perceived as ineffective and poorly organised, they reveal that a notion of individual criminal responsibility in war was developing.
However, there was another question that had to be dealt with, namely, how to conceive of the population that had not taken part in the war, but survived it. The point I want to make is that some civilian populations came to be viewed as victims deserving protection. This recognition of supposedly vulnerable population groups did not follow the combatant/non-combatant distinction. Rather, it followed the belief that specific groups, defined along ethnic and religious lines, deserved recognition and legal protection due to their particular vulnerability. Accordingly, discussions on this matter did not take place in the Commission on Responsibility, but in the Conference Committee for the creation of new states arising from the breakdown of Empires (and resulted in the signing of Minority Treaties). The point has been made that until 1919, the standards of humanity and civilisation as stated in the Marten’s Clause were perceived as sufficient to protect civilian populations, at least in Europe. However, with the creation of new states in Central, Eastern and South-Eastern Europe, the Allies claimed that new standards needed to be constructed.
The Allies (and US President Wilson in particular) argued that in order to maintain international peace and order, new states should be defined along ethnic lines and smaller groups within these states should be granted international guarantees for protection. This may have been a sign that the Allies perceived the new states as inexperienced and unable to guarantee the equal protection of their population. However, the argument that the Allies advanced was that ethnicity was the most suitable ground for politics of recognition, given the imperial past of that part of Europe. The formal recognition of the new states was thus made conditional upon the signing of treaties granting protection to specific minority groups. In case of mistreatment, recognised members of these minorities would be entitled to directly address petitions to the League of Nations – either collectively or individually. While the decision at the Paris Peace Conference to enforce Minority Treaties was taken without direct reference to the Laws of War, this matter might require further attention. After all, the codification of the Minority Treaties took place in a peace conference that was the direct result of a long-lasting and destructive war – a war in which groups of civilians had been persecuted because of their religious and ethnic origins. Denationalisation, mass murder, and the rape of members of specific population groups were regularly reported to the Commission on the Responsibility of War. Interestingly, these are crimes that came to be internationally recognized after World War II.
The problem with the Minority Treaties was that they were codified on very contradictory grounds. Without discussing all problematic aspects of the treaties, I want to briefly sketch the elements most relevant for our discussion. Each treaty was different and dealt with the specific domestic context of every new state. Hence, every treaty was supposed to set out rights for members of specific national minorities, as well as the duties of state authorities to guarantee these rights. However, due to the inexperience or prejudice of the Paris peacemakers, not all previously recognised minorities were acknowledged in the treaties. It remains unclear how the selection was made. As Carole Fink has suggested, acknowledging the rights of certain groups while ignoring others gave rise to the problem of the “named and unnamed minorities, protected and unprotected people”. But this may not have been a matter of much concern in 1919. The process of drafting the treaties and having them ratified by the new states, which regarded them as international intrusion into their domestic affairs, was complex enough.
Similarly, how the Minority Treaties would be implemented was not a matter of much concern and no international implementation mechanism was set up. After all, when the representatives of the new states signed their respective treaty, they were asked to give two basic international guarantees. First, they had to guarantee that the treaty would be integrated into their domestic legislation. Second, they had to give assurance that minority protection would be an obligation of international interest, under the guarantee of the League of Nations.
Things, though, did not really go that way. Both the Minority Treaties and the two bilateral agreements on exchanges of populations signed under the auspices of the League are cases in point. Eric Weitz remarks that, ironically, recognition of minority groups and deportation of populations emerged together in Paris. It might well be, therefore, that the influence of the post-World War I twin notion of recognition & protection has been underappreciated because of the ambivalence of the Minority Treaties. While they led to recognition and empowerment of individuals through the allocation of special rights, they also led to exclusion and deportation. This dark part of the story of protecting “vulnerable” populations needs further elucidation. In the following decades, lawyers and international actors dealt with this dilemma through the formalisation of individual human rights that grant protection beyond national allegiances and group membership. But the post-1945 tension between genocide (a crime committed against groups) and crimes against humanity (focused on the individual beyond group allegiance) shows us that what happened before 1945 remains relevant today.
My point in bringing the protection of civilians and individual criminal responsibility together into a single historical account has been to show the existence of old interlocking tensions between notions of individual responsibility, collective guilt, innocence and protection. Joining the two sides of a not so different story helps to uncover the many legal, political, and moral difficulties in comprehending the reality of war. Embracing such complexity might also prove helpful as it reveals how much the protection of civilians and individual criminal responsibility in war share. Moreover, it reveals that the issues discussed in 1919 are not so different from the issues that we face today.
 See the debate between Michael Walzer and Jeff McMahan on Philosophia 34 (2006)
 AAVV, La paix de Versailles: La responsabilité des auteurs de la Guerre et Sanctions. La documentation Internationale, vol. 3 (Les Editions Internationales 1930), 5.
 Quoted in Peter Holquist, “Crimes Against Humanity: Genealogy of a Concept”, unpublished working paper, University of Pennsylvania
 See for a detailed account of these debates Mark Lewis, The Birth of the New Justice, (Oxford University Press 2014).
 Lewis, The Birth of the New Justice, 36-49
 AAVV, La paix de Versailles, see the debates of the second sub-committee of the Commission.
 “Commission on the Responsibility of the Authors of the War and of Enforcement of Penalties”, The American Journal of International Law vol14, no1/2, 1920 (95-154)
 Helen Kinsella, The Image before the Weapon: A Critical History of the Distinction between Combatant and Civilian (Cornell University Press, 2011), Chapter 5.
 Carole Fink, Defending the Rights of Others : The Great Powers, the Jews, and International Minority Protection, 1878-1938 (Cambridge University Press, 2004), 73.
 Eric Weitz, “From the Vienna to the Paris System: International Politics and the Entangled Histories of Human Rights, Forced Deportations, and Civilizing Missions,” The American Historical Review 113: 5 (2008): 1313–43.