Nikolaos Politis and the Earliest Negotiation to Establish an International Criminal Court

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Edited by

Jean-Paul Jacqué

Florence Benoît-rohmer

Panagiotis grigoriou

maria Daniella marouDa

www.isideris.gr

Liber Amicorum Stelios Perrakis Liber Amicorum

S t e l i o s P e r r a k i s

ECRITS SUR LA COMMUNAUTE INTERNATIONALE:

ENJEUX JURIDIQUES, POLITIQUES ET DIMPLOMATIQUES ON THE INTERNATIONAL COMMUNITY:

LEGAL, POLITICAL, DIPLOMATIC ISSUES

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ECRITS SUR LA COMMUNAUTE INTERNATIONALE:

ENJEUX JURIDIQUES, POLITIQUES ET DIMPLOMATIQUES

ON THE INTERNATIONAL COMMUNITY:

LEGAL, POLITICAL, DIPLOMATIC ISSUES

Liber Amicorum Stelios Perrakis

Edited by J

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PUBLISHED BY I. SIDERIS

2017

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NIKOLAOS POLITIS AND THE EARLIEST NEGOTIATION TO ESTABLISH AN INTERNATIONAL CRIMINAL COURT

W^illiam s^chaBasoc mria

Greece was one of the members of the Commission on the Responsibility of the Au- thors of the War and on Enforcement of Penalties, an institution of the Paris Peace Congress charged with the development of a plan for post-World War I prosecutions.

During the ‘Preliminary Peace Conference’, in January 1919, President Venizelos had requested that Greece be represented on the Commission ‘in view of the fact that we have to deplore the loss of between three and four hundred-thousand people of Greek race in the Ottoman Empire’ and consequently have a ‘special point of view on this question’.¹ Nicolaos Politis, the Foreign Minister, represented Greece in the Com- mission. Linos-Alexandre Sicilianos and Thomas Skouteris have noted that ‘[i]n his dual role as academic and diplomat-international civil servant, Politis left his mark on some of the most importantinstitutional developments of the interwar period’.² His significant contribution to the earliest negotiations on the establishment of an international criminal court, as dawn was breaking on international criminal justice, does not seem to have attracted scholarly attention.

In the Commission on Responsibilities, Politis made many useful and, by today’s standards, very progressive contributions to the debates. He argued for a broad under- standing of international crimes, insisting that the matter ‘should not be considered from a technical point of view, that is to say as limited to acts characterised as crimes or punished as such by penal laws; it must be understood as criminal acts in the more general sense’. He cited in this context ‘the massacres organised by the Turkish authorities on the advice of the Germans’, an allusion to what is today known as the Ar- menian genocide. Politis said that ‘[s]ome people thought, and he agreed, that it was

1. ‘Preliminary Peace Conference, Protocol No. 2, Plenary Session of January 25, 1919’, Papers Relating to the Foreign Relations of the United States, The Paris Peace Conference 1919, Vol. III, Washington:

US Government Printing Office, 1943, p. 176, at pp. 191-192.

2. L.A. sicilianos AND T. Skouteris, ‘Editorial Note’, (2012) 23 European Journal of International Law 215, at pp. 217-218. See also: R. holsti, ‘Nicolas Politis, 1872-1942’, (1942) 36 American Journal of International Law 475.

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necessary to include among the prosecutions of an international character in respect of acts which violated what might be called the law of humanity or the moral law’.³ Poli- tis also intervened to contest the suggestion that the German Emperor might benefit from immunity, which he described as a principle of ‘practical expediency in munici- pal law’ and one, even at the domestic law, subject to exceptions. He acknowledged that a foreign Head of State could not be prosecuted by a national court but noted that this rule did not apply if there was to be an international tribunal.⁴

1. A TRIBUNAL FOR GERMANY AND ITS FORMER EMPEROR

The Commission was asked to inquire into and report upon ‘[t]he constitution and procedure of a tribunal’ to deal with responsibility of the authors of the war and alleged violations of the laws and customs of war.⁵ The Commission noted that all of the victorious powers were in a position to hold trials before their domestic courts. Excep- tionally, for example where the victims were nationals of more than one country or,

‘having regard to the character of the offence or the law of any belligerent country, it may be considered advisable’, trial would be held before a ‘high tribunal’. It would be composed of three persons appointed by each of the governments of the United States, the British Empire, France, Italy and Japan, and one each from Belgium, Greece, Po- land, Portugal, Romania, Serbia and Czechoslovakia.⁶

The American representatives issued a dissenting opinion. They had unsuccess- fully proposed that the Commission contemplate ‘a tribunal of an international character’ to be formed by a union of existing national military tribunals or commissions.⁷

‘To the unprecedented proposal of creating an international criminal tribunal … the American members refused to give their assent’, states the minority opinion.⁸ Further- more, ‘the American representatives felt very strongly that too great attention could not be devoted to the creation of an international criminal court for the trial of individuals, for which a precedent is lacking, and which appears to be unknown in the practice of nations’.⁹

In Sub-Commission III of the Commission on Responsibilities, Politis declared that the draft report ‘had given him a very bad impression because there had been a

3. Minutes of the Second Meeting [of the Commission], February 7, 1919, at 11.30 a.m. See: J. F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War, Westport, CT: Greenwood Press, 1982, p. 157; Jackson nyamuya maogoto, ‘The 1919 Paris Peace Conference and the Allied Commission: Challenging Sovereignty Through Supranational Criminal Ju- risdiction’, in Morten Bergsmo, c^heah Wûi lîng and yⁱ Pîng, eds., Historical Origins of International Criminal Law: Volume 1, Brussels: Torkel Opsahl Academic EPublisher, 2014, pp. 171-194, at p. 177.

4. Minutes of the Fourth Meeting [of the Commission], March 13, 1919, at 10.30 a.m.

5. Ibid., p. 1.

6. Ibid., pp. 23-24.

7. Ibid., p. 59. See also the account of the negotiations by Robert Lansing to his American colleagues:

‘Minutes of the Meetings of the Commissioners Plenipotentiary, Wednesday, March 5^th, 1919’, Papers Relating to the Foreign Relations of the United States, The Paris Peace Conference 1919, Vol. XI, Washington: US Government Printing Office, 1945, pp. 93-97, at p. 93.

8. Ibid., p. 60.

9. Ibid., p 74.

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Nikolaos Politis and the earliest negotiation to establish an International Criminal Court

lack of agreement on a capital point’, namely the establishment of an international tribunal. He said that national courts ‘would inevitably be partial’ and that an international body was necessary ‘because it alone could give the necessary sense of confi- dence and justice’. He expressed dismay that the United States was not supportive of the proposal for an international tribunal: ‘Without their adherence the Court would not have the necessary authority and it would be difficult to explain their abstention to the world and would give the enemy a valid ground for criticism.’¹⁰

The American approach on the matter of a high tribunal prevailed at the political level.¹¹ Historians do not appear to have untangled the complex negotiations that took place following submission of the report of the Commission on Responsibili- ties, leading to a rather complex compromise that was inconsistent with the positions previously adopted.¹² On instructions from the Council of the First Delegates of the Powers with General Interests, the Drafting Committee prepared clauses that, with some minor adjustments,¹³ constitute articles 227 to 230 of the Treaty of Versailles.¹⁴ In a major concession by the Americans, a ‘special tribunal’ was to be established, but only for the trial of the Kaiser and not more generally as an instrument for war crimes prosecutions. The tribunal was to be composed of judges appointed by the five major powers, but with no participation by smaller States such as Greece. All other prosecutions would be by national courts or, if more than one State was involved, by joint military tribunals. Subsequently, the Conference agreed that the same provisions dealing with prosecution and punishment should be included in the peace treaties with Austria and Hungary.¹⁵

1.1. WAR CRIMES, GREECE AND THE ARMENIANS

An annex to the report of the Commission listed violations that might be subject to prosecution. Under the heading ‘Greece’ appears: ‘Great number of Greeks massacred by the Turks’. The crimes were alleged to have taken place from July 1914 to Decem- ber 1915 in Smyrna, Aivali, Vourla, Adalia, Kirkilissé, Visa, Kessani, Adrianople and Englezonissi. The authors of the crimes are described as ‘Turkish authorities’.¹⁶ The

10. Sub-Commission III on the Violation of the Laws and Customs of War, Fourth Meeting held at the Ministry of the Interior on Tuesday, 4th March [1919] at 11 a.m.

11. See M. l^eWis, The Birth of the New Justice, Oxford: Oxford University Press, 2014, pp. 50-52.

12. See J.N. Maogoto, ‘The 1919 Paris Peace Conference and the Allied Commission: Challenging Sov- ereignty Through Supranational Criminal Jurisdiction’, in môrten Bêrgsmo, c^heah Wûi lîng and yi Ping, eds., Historical Origins of International Criminal Law: Volume 1, Brussels: Torkel Opsahl Academic EPublisher, 2014, pp. 171-194, at pp. 185-189.

13. ‘Notes of a Meeting Held at President Wilson’s House in the Place des Etats-Unis, on Thursday, May 1, 1919, at 11 a.m.’, Papers Relating to the Foreign Relations of the United States, The Paris Peace Con- ference 1919, Vol. V, Washington: US Government Printing Office, 1946, pp. 389-397, at pp. 389-390.

14. ‘Draft Clauses Prepared by the Drafting Committee of the Peace Conference, on instructions received from the Council of the First Delegates of the Powers With General Interests After Consideration of Report of the Commission’, Papers Relating to the Foreign Relations of the United States, The Paris Peace Conference 1919, Vol. V, Washington: US Government Printing Office, 1946, pp. 401-402.

15. ‘Notes of a Meeting Held at President Wilson’s House in the Place des Etats-Unis, Paris, on Friday, May 9, 1919, at 4 p.m.’, Papers Relating to the Foreign Relations of the United States, The Paris Peace Conference 1919, Vol. V, Washington: US Government Printing Office, 1946, pp. 526-531, at p. 530.

16. Violations of the Laws and Customs of War, Reports of Majority and Dissenting Reports of American

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annex also reports on the deliberate starvation of civilians, attributing responsibility to ‘Bulgarian authorities’ and referring to nearly 40,000 Greek victims.¹⁷ Both Bulgar- ian and Turkish authorities or officials are charged with ‘[m]any cases of violation of Greek women and girls’.¹⁸ The report also contains charges of Greek women being sent to Bulgaria for prostitution, and of Greek children less than fourteen years of age being sent to Bulgaria.¹⁹

Under the heading ‘Greece’ is also found the ‘[m]assacres of Armenians by the Turks systematically organised with German complicity’. The annex to the report speaks of ‘[m]ore than 200,000 victims assassinated, burned alive, or drowned in the lake of Van, the Euphrates or the Black Sea’ between 1914 and 1918. It identifies the authors as ‘Turkish Government authorities, military and administrative. Turkish civilians. German authorities. (More than 50 names have been officially authenticated).’²⁰ Under the heading ‘deportation of civilians’, the report notes that ‘[m]ore than a mil- lion Armenians [were] deported to Mesopotamia and Syria, where a great number succumbed to bad treatment, hunger and disease’.²¹

2. POLITIS AND THE TREATY OF NEUILLY-SUR-SEINE

Having submitted its report to the Conference in March 1919, the Commission on Responsibilities resumed its work in July. Its attention turned to the treaty of peace with Bulgaria, which was subsequently entitled the Treaty of Neuilly-sur-Seine. The American representatives noted at the outset that they had not been at war with Bul- garia. While they would attend the meetings, ‘they were not for the moment to oppose the decisions taken’.²² Immediately, the Commission considered a joint proposal from the three States most concerned with Bulgaria, namely Greece, Romania and the Kingdom of the Serbs, Croats and Slovenes:

Article 1. The Bulgarian Government recognises the right of the Allied Powers to bring before a High Tribunal all persons accused of having committed, ordered or tolerated acts in violation of the law and customs of war. The High Tribunal shall be composed of seven members appointed by the Governments of the British Empire, France, Italy, Belgium, Greece, Roumania and the Kingdom of the Serbs, Croats and Slovenes.

Article 2. The High Tribunal shall determine its own procedure, including the arrangements for prosecution and defence. It will sit, according to circumstances, in Greece, in Roumania or in the Kingdom of the Serbs, Croats and Slovenes. It shall have power to refer any case for examination in first instance, for enquiry or for report to any judicial authority of these three Powers.

and Japanese Members of the Commission of Responsibilities, Conference of Paris, 1919, Oxford:

Clarendon Press, 1919, p. 30.

17. Ibid., p. 33.

18. Ibid., p. 34.

19. Ibid., p. 34.

20. Ibid., p. 30.

21. Ibid., p. 35.

22. Minutes of the Twelfth Meeting [of the Commission], July 15, 1919, at 11.00 a.m.

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Article 3. The law to be applied by the High Tribunal shall be the principles of the law of nations as these result from treaties and usages established among civilised people, and the High Tribunal shall impose on the persons found guilty such punish- ments as may be imposed by any Court in one of the countries represented on the High Tribunal or in Bulgaria itself. This provision will apply, notwithstanding any order for amnesty or any proceedings or prosecutions before a Tribunal in Bulgaria or in the territory of her allies.

Article 4. The duty of selecting cases to be brought before the High Tribunal for trial shall be performed by a Commission on prosecutions appointed by the Govern- ments of the States represented on the High Tribunal. The Commission on prosecutions shall, within three months from the date of its appointment, draw up the list of persons to be brought before the High Tribunal and shall notify the Bulgarian Gov- ernment thereof. The Bulgarian Government shall hold the persons thus designated at the disposal of the High Tribunal, so that they may be handed over to the latter as and when the procedure may so require through the agency of one of the Governments in whose territory the High Tribunal is called upon to act according to circumstances.

Article 5. The Bulgarian Government undertakes to furnish all documents and information of every kind, the production of which may be considered necessary to ensure the full knowledge of the incriminating acts, the discovery of offenders and the full appreciation of responsibility.

Article 6. The execution of the judgments of the High Tribunal shall be entrusted to the Government of the country where the High Tribunal shall have delivered its sentence. The costs of the proceedings which result in convictions shall, after examination and approval by the High Tribunal be borne by the Bulgarian Government and settled by the Reparation Commission.²³

As spokesman for the three States, Politis informed the Commission that they had ‘deliberately set aside the system adopted in the Treaty with Germany (trial by national military tribunals of the Allied and Associated Powers), as they preferred the system of an international tribunal which had been unanimously adopted by the Del- egates of all the countries which were, apparently, to be signatories of the Treaty with Bulgaria’.²⁴ His surmise did not prove to be entirely accurate: the parties to the Treaty of Neuilly-sur-Seine, in addition to Bulgaria, were the five ‘Principal Allied and As- sociated Powers’, that is, the United States, the British Empire, France, Italy and Ja- pan, and the other ‘Allied and Associated Powers’, that is, Belgium, China, Cuba, Greece, the Hedjaz, Poland, Portugal, Romania, the Serb-Croat-Slovene State, Siam and Czechoslovakia. Perhaps Politis was hopeful that the passive or secondary position of the United States, whose opposition to an international tribunal had scuppered the idea in the Treaty of Versailles, would leave the field open for his revived effort.

Politis said that the Versailles formula would have been acceptable but for ‘special reasons’ favouring an international tribunal. First, ‘there was a very large number of crimes committed by Bulgarians against the law of nations which concerned all three

23. Preliminary Draft, Annex 2 to Minutes of Twelfth Meeting.

24. Minutes of the Twelfth Meeting [of the Commission], July 15, 1919, at 11.00 a.m.

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of the countries bordering on Bulgaria, as, for instance, crimes committed in prison- ers’ camps where Roumanians, Serbians and Greeks were interned together’. He acknowledged that this situation had been contemplated by article 229 of the Treaty of Versailles (‘Persons guilty of criminal acts against the nationals of more than one of the Allied and Associated Powers will be brought before military tribunals composed of members of the military tribunals of the Powers concerned.’) but said this approach

‘would entail serious complications owing to the laws of the three countries being different’.²⁵ Politis was quite correct in his assessment of the practical obstacles to the mixed military tribunals proposed in article 229 of the Treaty of Versailles. Indeed, article 229 was never implemented.

Politis also argued that an international ‘high tribunal’ was required ‘in view of the popular passions prevalent in the Balkans’. Because the majority of the members of the international tribunal would not be nationals of States bordering on Bulgaria, a ‘maximum of impartiality’ would be provided. The tribunal proposed would con- sist of seven judges, one from each of the three States bordering Bulgaria and four representing the United Kingdom France, Italy and Belgium. He said that the Balkan delegations ‘thought that Belgium would be willing to lend her assistance in a work of justice where the parties concerned were themselves seeking impartiality’. Politis explained that the selection of cases would be made by a Commission on Prosecutions

‘which would offer the same guarantees as regards its composition and impartiality’. In selecting the cases, the Commission would ‘relieve the judicial authorities of small cases, only the more important ones being retained’. Nearly a century later, with the recent experience of the International Criminal Tribunal for the former Yugosla- via, Politis’s observations about international justice in the Balkans seem remarkably clairvoyant.

The French representative to the Commission, Ferdinand Larnaude, expressed

‘some anxiety’ about ‘grave consequences’ that might result because of its implied criticism of the approach taken in the Versailles Treaty as lacking a sufficient level of impartiality. Larnaude acknowledged that an international tribunal was contemplated in article 227 of the Treaty of Versailles, but noted that it was reserved to the Kaiser and was ‘outside the domain of positive law, for very special, and even for political reasons’. Larnaud insisted that in the discussion about the Treaty of Versailles, he had himself favoured an international tribunal. Indeed, a paper authored by Larnaude and Albert Geouffre de Lapradelle, both of them professors at the University of Paris, calling for establishment of such a body had been circulated to the Commission at the beginning of its work, as requested by Georges Clemenceau himself.²⁶ But Larnaude said he was now concerned that the rejection at the political level now made revivial of the idea problematic.

Edouard Rolin-Jaequemyns of Belgium took a more nuanced view, noting that while symmetry with the Treaty of Versailles was desirable, ‘he did not think this scruple should be carried too far’. Sir Ernest Pollock of the United Kingdom con-

25. Ibid.

26. ‘Inquiry into the Penal Liabilities of the Emperor Wilhelm II’, Annex to Minutes of First Meeting.

Subsequently published: A. de laPraDelle and F. larnauDe, ‘Examen de la responsabilité pénale de l’Empereur Guillaume II d’Allemagne’, (1919) 46 Journal de Droit International 131.

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curred with Rolin-Jaequemyns. So did the chair, Vittorio Scialoja of Italy, who ob- served that ‘[t]here had always been a great element of bitterness among the Balkan States than among the larger States who had been at war, and the special function of the proposed international tribunal would be to eliminate any injustice which might be done by a trial left in the hands of States who had fought one another’. The Twelfth Meeting of the Commission concluded with a vote accepting in principle the proposal from the three Balkan States for creation of a ‘high tribunal’.

3. ATTEMPTS AT COMPROMISE

In light of the initial debate, and particularly the concerns of Larnaude, Politis submitted a revised draft. He attempted to reconcile the scheme in the Treaty of Versailles with the creation of a ‘high tribunal’. Politis proposed that the second sentence of article 1 of the initial draft be replaced by two new provisions:

Article 1. The Bulgarian Government recognises the right of the Allied Powers to bring before a High Tribunal all persons accused of having committed, ordered or tolerated acts in violation of the law and customs of war.

Article 2. These persons will be before the military tribunals of the Allied Powers if they are in the power of the latter. Persons guilty of criminal acts against the nationals of one of the Allied Powers will be brought before the military tribunals of that Power. Persons guilty of criminal acts against the nationals of more than one of the Allied Powers will be brought before military tribunals composed of members of the military tribunals of the Powers concerned. In every case the accused will be entitled to name his own counsel. Such persons shall, if found guilty be sentence to punish- ments laid down by law. These provisions will apply notwithstanding any proceedings or prosecutions before a tribunal in Bulgaria or in the territory of her allies.

Article 3. The persons referred to in Article 1, who are not in the hands of the Al- lied Powers. Shall be brought before a High Tribunal composed of seven members appointed by the Governments of the British Empire, France, Italy, Belgium, Greece, Roumania and the Kingdom of the Serbs, Croats and Slovenes.²⁷

Articles 2 to 6 of the earlier draft were renumbered accordingly. In effect, Politis had inserted the Versailles scheme between the first and second sentences of article 1 of the initial draft. This meant that those already detained by the Allied Powers would be tried in a manner similar to that of the Treaty of Versailles. Those who were subsequently apprehended would be tried before the international ‘high tribunal’. Larnaude said that given the acceptance at the previous meeting of the principle of a ‘high tribunal’, he saw no disadvantage in attempting to harmonise the provisions with those of the peace treaty with Germany.²⁸

27. ‘Treaty with Bulgaria: Amendments proposed by M. Politis to the Draft Articles presented by the Delegations of the three powers bordering on Bulgaria’, Annex 1 to Minutes of Thirteenth meeting.

28. Minutes of the Thirteenth meeting [of the Commission], July 17, 1919, at 10.30 a.m.

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The Commission proceeded to an article by article review of the draft. Article 1, by which Bulgaria acknowledged the right of the allies to try its nationals for war crimes, was adopted without debate or discussion. Article 2 introduced the Versailles scheme of prosecution. Curiously, it was Larnaude who criticised the text, saying that use of the term ‘proceedings or prosecutions’ might be implied to exclude the sentence, something he felt was unacceptable. After the chairman indicated this could be addressed as a matter of interpretation, article 2 was also adopted.

Rolin-Jaequemyns of Belgium requested that his country be removed from those entitled to appoint a judge. He noted that Belgium had not declared war on Bulgaria and had confined itself to breaking diplomatic relations. He said the presence of a Bel- gian judge might change the character of the tribunal, given that it might be deemed a neutral power. Politis insisted, however, that Belgium belonged amongst the Allied and Associated Powers as a consequence of its treaty relationships, and Rolin-Jae- quemyns demeured. Some insignificant technical amendments were made to the draft which was then adopted, as were the remaining articles in the draft. The United States, which had not participated in the debates at the Thirteenth Meeting, subsequently submitted a written statement of reservation: ‘The United States accepts so much of the proposals as are in accord with Articles 228, 229 and 230 of the Treaty with Germany, and reserves as to those parts of the proposals contrary to or inconsistent with those articles. The United States further reserves the right to place on record a formal statement of its views after examining the report of M. Rolin-Jaequemyns.’²⁹

On 21 July 1919, the issue of the penalty clauses in the treaty with Bulgaria was referred to in a meeting of Heads of Delegations of the Five Powers. Arthur Balfour of the United Kingdom said he inquired as to why the provisions in the Treaty of Versailles were not being repeated. ‘In the other Treaties it had been stipulated that if the crime had been committed to the detriment of a Frenchman, the trial should be in a French Court, and if against an Englishman, in an English Court’, and if against nationals of several countries ‘in a mixed Court’. However, it ‘appeared … that a Greek, Serbian, or Roumanian Court would not be regarded as offering a fair trial to a Bulgar- ian who had committed an offence against a Greek, Serbian or Roumanian. This might or might not be, but whatever the merits of the case, he thought the Council should insist that the work should be terminated rapidly.’ Balfour said he would suggest that Clemenceau request the Commission to expedite its work.³⁰

4. RENEWED OPPOSITION FROM THE UNITED STATES AND JAPAN The following day, the Commission held its final meeting for the purpose of finalising its report on the treaty with Bulgaria including the draft articles. Larnaude launched the discussion by raising a problem with article 1, which referred to ‘persons accused

29. ‘Reservations of the United States Delegation’, Annex 2 to Minutes of Thirteenth meeting.

30. ‘Notes of a Meeting of the Heads of Delegations of the Five Great Powers Held in M. Pichon’s Room at the Quai d’Orsay, Paris, on Monday, July 21, 1919, at 3:30 p.m.’, Papers Relating to the Foreign Relations of the United States, The Paris Peace Conference 1919, Vol. VII, Washington: US Govern- ment Printing Office, 1946, pp. 233-242, at pp. 233-234.

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of having committed, ordered or tolerated acts in violation of the law and customs of war’. He referred to earlier debates in the Commission on this point, which are reflected in the March report, about ‘whether the fact of a person not having opposed an act of cruelty which he might have prevented rendered him liable to prosecution’.

He said France limited the application of such a notion ‘to persons having authority over the individuals who might have committed such acts’. Otherwise, ‘it was an absolute violation of the rules of penal law to state that a person was liable to pros- ecution for having tolerated cruel acts’.³¹ The American representative, James Brown Scott, recalled his country’s memorandum of reservations in the March report. The Commission then agreed to delete the word ‘tolerated’ from article 1, and rephrase it as follows: ‘The Bulgarian Government recognises the right of the Allied Powers to bring to justice in the manner hereinafter provided all persons accused of having committee or ordered acts in violation of the laws and customs of war, or who though having authority did not oppose these acts.’³²

Turning to article 3, Larnaude found the label ‘High Tribunal’ to be ‘somewhat too stately’, noting that ‘special tribunal’ was the nomenclature used in article 227 of the Treaty of Versailles. The Commission agreed to replace ‘High Tribunal’ with

‘tribunal’. With respect to article 4, Larnaude felt the words ‘the arrangements for prosecution and defence’ had ‘left the right of the defence rather too much in the air’.

The Commission agreed to add the words ‘and for the guarantees essential to the defence’ after ‘arrangements for prosecution’. Finally the United States attempted a last-ditch ‘compromise’ proposal whereby the Commission on prosecutions would be transformed into an ‘Inter-Allied Commission of Inquiry’. It would have exclusive jurisdiction over the selection of cases, but the trials would be held by national courts, not an international body as proposed by the Balkan States. Politis was unimpressed and the Brown Scott withdrew the ‘compromise’. The draft provisions as a whole were adopted along with a report that reviewed the debates in the Commission. The United States appended its own dissenting declaration.

The report was considered by the Heads of Delegations on 25 July 1919. Larnaude attended, apparently at the invitation of Clemenceau who introduced him. Larnaude explained that the three Balkan States had ‘feared that their good faith would be ques- tioned adversely and therefore preferred that persons guilty of crimes against their citizens should be brought to judgment before international tribunals and not before national military tribunals of each of the Powers whose citizens had been injured, as was the case in the German Treaty’. He noted the American reservations as well as the French view that it would be ‘difficult and dangerous to adopt a different method of punishing the same criminal acts, should they agree to the proposal to grant to Bulgaria international guarantees of impartiality, which they had refused to grant to Germany’.³³

31. Minutes of the Fourteenth meeting [of the Commission], July 22, 1919, at 11 a.m. (emphasis in the original).

32. Minutes of the Fourteenth meeting [of the Commission], July 22, 1919, at 11 a.m. (emphasis in the orginal). Also: ‘Amendments suggested by Sir Ernest Pollock’, Annex 2 to Minutes of Fourteenth Meeting.

33. ‘Notes of a Meeting of the Heads of Delegations of the Five Great Powers Held in M. Pichon’s Room

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The ensuing discussion brought out Japanese objections to the proposal for an international tribunal. Italy, on the other hand, said it would be hard to oppose the request of the three Balkan States. Balfour recalled that the March report of the Com- mission on Responsibilities had favoured an international tribunal similar to what was now being proposed by Greece, Serbia and Romania. He said he did not know why that proposal had not been adopted ‘but it must certainly have been based upon strong arguments. For this reason, he was not inclined to adopt a contrary principle.’³⁴ Italy said it was ‘indifferent’, and with that, Clemenceau declared that the approach taken in articles 228 to 230 of the Treaty of Versailles would be followed.

It might be tempting to attribute the defeat of the Commission’s proposal for a an international tribunal to Larnaude’s one-sided and somewhat treacherous presenta- tion of the report to the Heads of Delegation. At the same time, a similar proposal in the treaty with Germany had floundered only a few months earlier. Just as it was not implausible for the Commission to attempt to revive its initial proposal, it was also entirely predictable that at the political level there would be similar levels of resis- tance. Subsequent developments concerning international criminal tribunals point to another explanation for the lack of enthusiasm among large, powerful States to courts that they do not dominate and control and where judges and prosecutors are sheltered from political interference by guarantees of independence. After all, the ‘high tribunal’ proposed by Politis and his Balkan colleagues would have seven judges, four of them from small countries. Selection of cases would be made by a similarly consti- tuted prosecutorial commission.

During the Second World War, a similar debate presented itself. The United Na- tions War Crimes Commission proposed the establishment of an international criminal tribunal where all States would participate as equals in the selection of judges and prosecutors. It was the work of several small States, some of them governments in exile, but it did not get a warm reception from the ‘great powers’. British Foreign Minister Anthony Eden effectively vetoed the proposal, favouring the establishment of a military tribunal.³⁵ Of course, that is what the four powers did at the London Con- ference in August 1945. And similar themes can be discerned during the negotiations of the Rome Statute. A remnant of the efforts by the ‘great powers’, now known as the

‘P-5’ because they are permanent members of the Security Council, can be found in article 16 of the Statute whereby the Security Council retains a form of veto upon the selection of cases and situations for prosecution by the International Criminal Court.

Politis was the first to encounter this problem, and he may not have fully understood the dynamics that were at work. The proposal was premised on an argument about fairness and impartiality, and on the specifics of the Balkan environment. Per- haps that was a negotiating gambit on his part, whereas his real motive was premised

at the Quai d’Orsay, Paris, on Friday, July 25, 1919, at 3:30 p.m.’, Papers Relating to the Foreign Rela- tions of the United States, The Paris Peace Conference 1919, Vol. VII, Washington: US Government Printing Office, 1946, pp. 254-268, at pp. 258-259.

34. Ibid., p. 260.

35. On the unsuccessful proposal of an international criminal court in the United Nations War Crimes Commission, see: W.A. SchaBas, ‘The United Nations War Crimes Commission’s Proposal for an Inter- national Criminal Court’, (2014) 25 Criminal Law Forum 171.

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on a commitment to the establishment of what would have been the first international criminal court. The rejection of the Commission’s proposal by the Five Powers on 25 July 1919 was not the last word on this subject, however. The idea of an international criminal tribunal returned yet again in article 230 of the Treaty of Sèvres, the peace with Turkey that was only finalised in mid-1920 and that never entered into force.

Once again, it repeats the Versailles formula of national and mixed courts, but with an intriguing addition: ‘In the event of the League of Nations having created in sufficient time a tribunal competent to deal with the said massacres, the Allied Powers reserve to themselves the right to bring the accused persons mentioned above before such tribunal, and the Turkish Government undertakes equally to recognise such tribunal.’ Greece was hugely interested in the Treaty of Sèvres, and one senses that the fingerprints of Politis may be found on this provision. Alas, the negotiations of the penalty clauses in the Treaty of Sèvres are even more obscure than those of the Treaty of Neuilly-sur-Seine, and seem to have escaped the interest of legal historians. That matter will have to await another Festschrift.

Nikolaos Politis and the Earliest Negotiation to Establish an International Criminal Court

Liber Amicorum Stelios Perrakis Liber Amicorum

S t e l i o s P e r r a k i s

Liber Amicorum Stelios Perrakis

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TABLE OF CONTENTS

NIKOLAOS POLITIS AND THE EARLIEST NEGOTIATION TO ESTABLISH AN INTERNATIONAL CRIMINAL COURT