What to do with the Kaiser?

Stephen Sedley

  • The Trial of the Kaiser by William A. Schabas
    Oxford, 432 pp, £24.99, October 2018, ISBN 978 0 19 883385 7

The title of the book is of course ironic: in spite of the clamour at the end of the Great War, the Kaiser was never tried, much less hanged. As Germany prepared to capitulate, Wilhelm II of Hohenzollern with his staff and family quietly crossed into neutral Holland, from where the Dutch politely but resolutely declined to extradite or expel him. Wilhelm lived on in exile for long enough to witness the outbreak of another world war and to blame the Jews for causing it, having already blamed them for his country’s defeat in the previous war.

So what else is there to tell? Quite a lot, it turns out. Indeed William Schabas, a noted legal historian and authority on international human rights law, originally proposed to write a novel about the trial that never was. But it would have required a great deal of guesswork. What would the Kaiser have been tried for? Where and by whom? And with what possible outcomes? The multifaceted story of how none of this happened is as bizarre as any fiction.

A couple of weeks before Germany capitulated, Wilhelm took the royal train to the Belgian border town of Spa, where his western military command was located. Germany was by now in civil turmoil and his generals were advising surrender. Wilhelm, while denouncing them as defeatist, slept in the royal train rather than in the nearby château into which his household had moved, and before dawn on the morning of 10 November 1918 gave the order for the train, with full liveried staff, to set off for Liège, where it could pick up the main line to Maastricht. After a few miles, fearing betrayal and possible attack by his own mutinous troops, he disembarked and continued the journey by car, reaching the Dutch frontier at Eijsden before daybreak. There the captain of the guard, who was without orders because intergovernmental telegrams were still in transit, allowed him into the Netherlands on his promise to return to Belgium if asked to do so. In the event the Dutch cabinet agreed that he could stay on as the guest of Count Bentinck, a German aristocrat whom he did not know and who had been disagreeably surprised to receive a phone call from The Hague asking him to accommodate the Kaiser and an entourage of thirty officials and servants in his château at Amerongen.

Although it has never been resolved whether the Kaiser was a guest or a refugee in the Netherlands, his safety was assured by a telegram from Queen Wilhelmina and by the Dutch government’s acknowledgment that his presence called up Holland’s ‘age-old tradition of hospitality’. The victorious Allies, although they huffed and puffed, would have found his expulsion or rendition embarrassing, for they had not decided – and in the event never did decide – what to do with him if they got their hands on him. Although the chief of the imperial general staff had noted on the day of the Armistice that ‘Lloyd George wants to shoot the Kaiser … Winston does not,’ the Liberal leader’s subsequent election manifesto was limited to trying the Kaiser and punishing those responsible for atrocities. Schabas’s view is that neutrality required the Dutch to intern the Kaiser as an officer of a belligerent power, as they had previously interned stray German, Belgian and British troops. If so, he would presumably have been returned in due course to Germany, where his safety would have been far from guaranteed notwithstanding his formal abdication at the end of November 1918. Holland finally squared the circle in March 1920 by issuing a royal decree to the effect that ‘the former German Emperor Wilhelm II will reside’ in Utrecht, a province with neither seaboard nor land frontier. Bentinck had to put up with his demanding guest for about a year and a half until Wilhelm was able to move into a moated mansion at Doorn, purchased with money he had been transferring in large amounts from Germany into Dutch bank accounts. There he remained while the Allies met in Paris to decide how the postwar world was to be reconfigured and what was to be done about the former German head of state.

This is what Article 227 of the Treaty of Versailles, signed, appropriately, in the Hall of Mirrors on 28 June 1919, finally provided:

The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties.

A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defence. It will be composed of five judges, one appointed by each of the following five powers: namely, the United States of America, Great Britain, France, Italy and Japan.

In its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality. It will be its duty to fix the punishment which it considers should be imposed.

The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex-Emperor in order that he may be put on trial.

The issues that leap from every line of Article 227 are tracked by Schabas as they were wrangled over by states with histories, lawyers and agendas of their own. Was the offence of which the Kaiser now stood accused a crime known to national or international law? Did a head of state in any case enjoy immunity from legal process? If not, why did the arraignment not include known war crimes for which the Kaiser, as commander in chief, was arguably answerable? Where was the tribunal to sit? Who would be the judges? Assuming (as Article 227 rather obviously did) that the Kaiser would be convicted, what sentences would be available? Who would be responsible for carrying out whatever sentence was passed? Would there be an appeal, if only for clemency? If so, to whom?

The prior question, addressed but not resolved in the final paragraph of the article, was how the Allied powers were anyway going to get hold of Wilhelm. Plans to concentrate Holland’s mind by blockading its shipping or blackballing its admission to the League of Nations were mooted but dismissed. So was the unreliable solution of getting the Dutch themselves to put Wilhelm on trial in the newly completed Peace Palace at The Hague. The Dutch also reacted badly to the suggestion that they keep the Kaiser but exile him to the Dutch East Indies, since his presence might foment a pan-Islamic revolt against colonial rule.

The refusal of the Netherlands to hand Wilhelm over left the Allies with a choice of kidnapping him, trying him in his absence or quietly forgetting about the whole thing. The first of these had already been attempted, irresponsibly and dangerously, in early January 1919 by a group of American troops led by Colonel Luke Lea, the commander of the 114th field artillery, a volunteer regiment Lea had raised in Tennessee and the Carolinas. Lea later told an army inquiry that he had been provoked into the adventure by meeting the Duke of Connaught when en route to France in June 1918. The duke had told him that he was the uncle of both King George V and the Kaiser (both of them grandsons of Queen Victoria) in a manner which suggested to Lea that the European establishment would make sure the Kaiser was protected, and so prompted him to undertake his own expedition. He was almost certainly lying, but the story pandered nicely to American prejudices and got him out of what might have been serious trouble.

Lea had been elected to the US Senate in 1911 aged 31 and evidently had a penchant for self-publicity. With three junior officers and three sergeants, all Americans, he set off for Amerongen with the aim of snatching the Kaiser from Bentinck’s château and delivering him to Paris (or, as he much later bragged, to the US government, which would be ‘legally obliged to string him up’). After an exploratory expedition at Christmas 1918, when they were turned back at the Dutch border, they set off in the new year in two staff cars which repeatedly broke down. When they reached Brussels, the American ambassador warned them they would be interned if they entered Holland in uniform, but he supplied them with civilian passports and got the Dutch head of mission to provide a laissez-passer. This enabled them to reach Amerongen, with firearms concealed under the car seats; once there Lea used his knowledge of German to order a sentry to admit them. Introducing themselves to the count’s son as American officers, they attracted instant suspicion. When Wilhelm declined to see them, they offered him a safe conduct to Paris, with an assurance that a loyal leader such as the Kaiser was unlikely to suffer any punishment worse than exile. When the offer was unsurprisingly refused they retreated to their cars, around which two companies of Dutch soldiers were now taking up position. They made it to the frontier with an inscribed bronze ashtray that one of the officers had stolen.

Not only were the arrogance and incompetence of Lea’s expedition beyond belief; if he and his party had been taken prisoner or started a firefight, the consequences for peace in Europe might have been catastrophic. Fortunately Wilhelm was not as stupid as they were, with the result that the other issues thrown up by Article 227 were never resolved; but they are no less interesting for that.

In the course of the war Britain and France had agreed on the fundamentals of an international criminal court with jurisdiction over all war crimes, whether or not the accused were present (trial in absentia was well established in much of Europe, though not in Britain). Ingeniously, the agreement anticipated making the surrender of persons convicted in absentia a condition of any future peace treaty. Close on the heels of the Armistice, with Wilhelm already safe in Holland, Clemenceau persuaded George Curzon, a member of the imperial war cabinet, that a trial of the Kaiser in absentia would meet the demands of justice, and that exile would be a fitting punishment. The imperial war cabinet, however, meeting in London at the beginning of December, decided that the Netherlands should be asked to surrender Wilhelm ‘for trial by an international court, to be appointed by the Allies, on the charge of being the criminal mainly responsible for the War’. Woodrow Wilson, informed of the decision as he embarked for France on 3 December, refused to commit the US to anything until he reached Paris. But although by the spring of 1920 it had become evident that neither an international trial in absentia nor a trial in Holland had any life in it, it is here that Schabas locates the matrix – he calls it an atavistic forerunner – of what has today become a fragile reality: a permanent international criminal court, empowered to try leaders of states for offences against the laws of war and crimes against humanity.

After Waterloo, nobody had even mooted a trial of Napoleon, save possibly by a French court for treason, making exile by decree of the victorious powers a simple and effective solution. At the end of the Second World War the Nuremberg international military tribunal would establish the existence of crimes against humanity and the crime of aggression; but the tribunal itself was ad hoc and impermanent. It was not until the Rome Statute of 1998 was adopted (with the US playing a similarly obstructive role to the one it played in Paris in 1919-20) that a permanent criminal court of supranational jurisdiction came into being. And it was not until July this year, after Schabas’s book had gone to press, that a defined international crime of aggression finally came into force.

The wiser heads among the Allied powers realised that charging the Kaiser with starting the war would put history itself on trial and, especially given the treaty’s guarantee of the rights of the defence, might result in a complicated hearing with no certain outcome. Equally, charging him with responsibility for war crimes such as the use of poison gas would incur the cross-accusation that Britain, France and the US had also used it, albeit in retaliation (and in some instances with egregious ineptitude). Evidence did, however, emerge of Wilhelm’s personal role in mandating some of Germany’s worst acts of warfare. In the wake of the surrender, the Social Democrat Karl Kautsky was commissioned by the Weimar government to examine the Foreign Office documents recording the events leading to the outbreak of war. By November 1919 more than a thousand such documents, filling four volumes, had been published in Berlin. They included the Kaiser’s marginalia, portraying, in Schabas’s words, ‘a belligerent, opinionated and tetchy autocrat who was directly involved in German foreign policy’. But although the Times published excerpts, the Foreign Office showed no interest in having the papers translated, and it was not until 1924, when trying the Kaiser was no longer on the agenda, that an English version was published.

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Undeterred by Wilhelm’s inaccessibility, the Paris deliberations about how to deal with him, and about much else, continued through 1919. The 29 nations represented there met periodically in formal session, but the decisions that mattered, including the formulation of Article 227, were taken in conclave by Woodrow Wilson, Lloyd George, Clemenceau and the Italian prime minister, Vittorio Orlando (the Japanese delegate, Saïonzi Kinmochi, attended only sporadically). This Council of Four, which started meeting when Wilson returned to Paris in March, took all the major decisions, including the decision to include Article 227, presenting them for endorsement to the plenary sessions. Initially christened the Conseil des dieux, it became known as the Conseil des vierges (suggesting, sarcastically, that the four leaders had open minds), while the parallel committee of foreign ministers became known – using the title of Marcel Prévost’s novel – as Les demi-vierges.

One reason Article 227 was shoehorned into the Treaty of Versailles was that neither the US nor Japan was satisfied that international law by itself authorised the trial of a head of state by other states: it was therefore necessary that, by being incorporated in the peace treaty, the process would have Germany’s formal consent. Even then, neither Wilson nor Kinmochi was happy about trying a head of state, reportedly because the Japanese regarded their emperor as divine and so immune, while the US was troubled (perhaps presciently) by the possibility that its own president might some day be put on trial. A charge of criminality – the executions of Edith Cavell and Charles Fryatt, the skipper of a merchant vessel which had rammed a German submarine, and the sinking of the Lusitania were at the forefront of British minds – was replaced by an accusation of ‘a supreme offence against international morality and the sanctity of treaties’ which would have been practically impossible to formulate as part of a triable indictment. The phrase had been copied by Wilson from a note by his secretary of state, Robert Lansing, who was against the whole idea of a trial, and was endorsed with minimal discussion by the three other members of the council. Wilson was well content. He had even managed to replace ‘principles’, in a phrase in the third paragraph of Article 227 about ‘the highest principles of international policy’, with ‘motives’, whatever that might mean.

The stalling of the proposed trial relieved the Allies of the need to decide where the court would sit. It could clearly not sit at The Hague. Clemenceau didn’t want it in France, and Wilson didn’t want it in the US; Lloyd George told the House of Commons that London (he meant England) had been decided on as the venue. On this slender basis the Daily Mail concocted a complete scenario: the Kaiser was to be surrendered by the Dutch and held in the Tower pending a trial at which he would be prosecuted by the solicitor-general (the bombastic Sir Gordon Hewart) and, when convicted, sentenced to lifelong banishment.

With or without the Mail’s creative reporting, the prospect of a trial in England caused alarm in one particular quarter: George V, to whom, at least nominally, any appeal for clemency would have to go, was the Kaiser’s first cousin. Although he described Wilhelm in his diary as ‘the greatest criminal known’, he was cross at the reported plan to hold his trial in London, raising the problem of daily journeys from prison to court and back, and driving Lloyd George to switch the plan to Hampton Court, where Wilhelm ‘could be confined to one part of the building, tried in another’, and ‘the whole of the grounds would be available for him.’ There would also be plenty of room, Lloyd George added, for the generals and statesmen who might be called to give evidence for the defence and whom we might be interested in trying and possibly hanging.

To almost everyone’s relief, including that of Lloyd George, none of these things happened. By the beginning of 1920 neither France nor Britain had got a case together, perhaps not surprisingly given the conceptual fudge of Article 227. Compared with Nuremberg, where a massive and complex trial was set up in a few months, the story of the plan to try and possibly hang the Kaiser resembles the chapter in The Good Soldier Švejk where the hero sets off manfully to rejoin the regiment from which he has become separated, and after two weeks of footslogging finds that – not entirely by chance – he is further away than when he started.

But for Schabas this is not the real story. The real story is the germination and the eventual flowering of the idea of a permanent international criminal court empowered to try and punish leaders and heads of state for defined offences: wars of aggression, genocide, war crimes and crimes against humanity. We are not there yet – Russia, the US, Sudan and Israel do not accept the ICC’s jurisdiction – but it was in the turmoil of 1919 in Paris that, almost blindly, a start was made.