THE EX-KAISER

Evening Post, Volume XCVI, Issue 156, 30 December 1918, Page 2

THE EX-KAISER

QUESTION OF EXTRADITION

THE LEGAL PROBLEM

DISCUSSED BY AN EXPERT.

The legal aspects of the demand for the trial of the ex-Kaiser were discussed recently in an article by Professor J. B. Peden, Dean of the Faculty of Law, Sydney University, in the Sydney Sun. These questions,* writes Protestor Peden, are of great interest, but on many points it is difficult to find definite authority. Here it is intended merely to indicate briefly some of the considerations involved. Are the Allies, for instance, entitled to insist -that Holland shall give the exKaisei up for trial? Nowadays, so far as the strict legal position is concerned, 'the view ordinarily taken. is that in general at all events a State is not bound to surrender a criminal who has taken refuge within its territoriy, unless it has enteTed into an extradition treaty which covers the particular case. In practice an extradition treaty, enumerates the offences to which it^is intended to. apply and specifies the conditions upon which extradition will be conceded. Whether a particular case comes within the treaty is merely a question o! the true construction of its terms. But the view that extradition rests solely upon treaty has not always,been accepted. Eminent publicists have insisted that a State it under a duty either to punish the fugitive criminal or to deliver him up to the' injured State. AN INTERNATIONAL DUTY. Moreover, whatever inference us to be drawn from English'or American courts or jurißtS, Franco apparently adheres to the doctrine that there is, even, apart from treaty, a definite legal obligation to surrender the foreign criminal. In any case, there is,the question of moral' obligation. Sir Edward Clarke a ■well-knowji authority on the law of extradition, says: "The surrender of fugitive criminals is an international duty. It may not be so plainly a matter of right that a refusal to grant it should subject a nation to the penalty of "war, but such -refusal is so clearly injurious to the country which refuses, and to the -whole world, that it i« a serious violation of the moral obligations which exist between civilised oomnvjinities." If that view is correct, it would seem to follow that the Allies would at least bo justified in bringing economic or other pressure to bear on Holland, if the Dutch refused to give the ex-KaiseT up. NATURE OF THE CHARGE. .'. The nature of the crime upon -which the demand for extradition .is based may obviously be important. Is the exKaiser to be charged with offences against international law, or with offences against the law of a particular State, say the law of France or of England, or with both classes of offences? A demaaid for extradition "on the ground that the ex-Kaiaer countenanced crimes against the common lair of nations" may well hay« a greater cogency than a demand based' on the ground that the eX'Kaiser is guilty of murder, piracy, or robbery, under French or English law. In one sense the war iteelf and the violation of the neutrality of Belgium are crimes for which- the ei-Kaiser, no less than Germany, must be held responsible. But those are not the crimes against the common law of nations to ■which the'recent cables refer. International law has not made a •wicked war or a shameful breach of treaty a ■ crime in any legal sense. The crimes referred 'to are th« crimes known as war crimes;' which include acts done in the prosecution of a war, but forbidden, by the law«of war; If any person who violates these laws falls into the (hands of the enemy, he is not entitled to be treated as a prisoner of war, but is liable to punishment as a criminal. WAR CRIMES. The following; war crimes are laken from a list of German misdeeds compiled in 1917 for Hall's International Law:— The use of poisonous and asphyxiating gases and liquid fire (in the first instance, and not by way of reprisal), the maltreatment of prisoners of war, the dropping of bombs on undefended towns and villages, the robbery of private property, the cruelties practised on the inhabitants of occupied territories, the devastation of territory, where no military object was in view, the indiscriminate laying of mines on the high seas and the attack by submarines without warning of merchant ships, enemy and neutral. As has Been pointed out by a French jurist, the enormity of the crime is no title to impunity; theft, murder, pillage, burnings committed against the laws of war, find in those laws neither justification nor excuse; the law of nations cannot shield those who have deliberately violated id. One method of dealing with war crimes of this character, is by retaliatory measures, but there is also the right to punish the criminals. TRIAL AND PUNISHMENT. j This punishment may bo inflicted by way of the summary justice administered by a court martial in time of war, that is as an act of justice justified by necessity, and by the fact of actual war. Vhether it can be inflicted by the ordinary courts will depend upon the law of the particular country. An instance of a formal trial of a war crime is that of Arabi Pasha, who, in 1882, was brought to trial by the Egyptian Government and condemned with the full approval of the Government of Great Britain, on the charge of having, against the laws of war, and in violation ,of the right of nations, hoisted white flag at Alexandria on the morning of 12th July, and of ha-ing at the same moment withdrawn his taoops and ordered the pillage and firing of the town of Alexandria. Whether the ex-Kaiser has authorised, i or otherwise taken part in any of the German war crimes, is a question of fact, to be proved by evidence. Assuming that ho is • implicated in these crimes, is there any ground for saying that -he is entitled to immunity by reason of the official position which he held at the time when the crimes were committed ? ■ AGENT AND PRINCIPAL. In general, if an individual does something as the agent bf a foreign country, the agent is not, according' to international law, to be held personally responsible by the country which is aggrieved by his act. . The .responsibility hes with the principal, and it is from the principal that reparation must be sought. From this point of view the German Empire might be regarded as the principal, and the German Emperor as merely its agent. But this doctrine of the immunity of the agent who does an "act of State" can have no application to an act which is itself a war crime. So far, then, as international law is concerned, there seems to be no reason why the ex-Kaiser should not be tried for a war crimw. - But there is an important question as to the tribunal by which he is to be tried. Is he to be tried by an international commission, specially appointed for the purpose, or by a Court of/one of the Allied countries? THE CRIMINAL CHARGES. i If, iuttead of being tried for an offence

against international law, the exKaiser were tried, gay, by an English Criminal Court for un offence against English criminal law, two questions su(f~ gest themselves—one as to the status of the accused, and the other as to the locality of the offence As to the status of the offender, the accepted rule is that the Sovereign of anothor State it exempt from the*criminal as well as the civil jurisdiction of an English Court. But, apparently this does not apply to a deponed, exiled, or fugitive Sovereign. As to the locality of the offonco, in general an English Court has no jurisdiction unless the offence.was committed in England or within three miles of the coast, or on board a. British vessel. . ' Suppose the ex-Kaiacr wag indicted before an English Court for murdering h British subject by torpedoing from a German submarine an unarmed British merchant ship. Where wag the offence committed—on the submarine or on the British ship? From every point of view it would seem that the most satisfactory course would be a trial before an international tribunal for a crime against the law of nations, so that human justice may be conspicuously vindicated.