Introduction
On July 6, 1921, Lieutenant General Karl Stenger left the Imperial Court House at Leipzig a free man. Stenger had been accused of ordering his soldiers to kill wounded and captured French soldiers in the preceding war. In court, Stenger admitted to shouting that his soldiers should shoot the French “like sparrows from the trees”—but he denied ordering the killing of prisoners. Despite several testimonies to the contrary, the court followed Stenger's version and even treated him with grotesque servility. Only his subordinate, Benno Crusius, received a minor sentence for negligent manslaughter despite maintaining that he had only followed Stenger's orders.Footnote 1 Outraged that Stenger had been brought to trial at all, the German nationalist and conservative press celebrated the acquittal, while the verdict sparked international outrage. The French Prime Minister Aristide Briand withdrew his government's observers from the court, calling the trial a comedy, a parody of justice, and a scandal.Footnote 2
The trial against Stenger was part of the so-called Leipzig trials against Germans accused of war crimes. Those trials resulted from the attempt after World War I to apply the principles of international humanitarian law, which had only emerged during the second half of the nineteenth century. In the Versailles Treaty, the victorious powers had codified that Germany bore the sole responsibility for the war. Moreover, Article 227 demanded that an international tribunal put the kaiser on trial for violating the “international morality and the sanctity of treaties,” and Article 228 obliged the German authorities to hand over Germans whom the Allies accused of “having committed acts in violation of the laws and customs of war.”Footnote 3 Despite the declared ambition to bring war criminals to justice and the attempt to break German sovereignty over its citizens, the Allies agreed to hand over the prosecution to the German authorities in February 1920. Of the 1,700 initial criminal investigations, only 13 led to trials in front of the Imperial Court at Leipzig, and, in these trials, only 10 defendants received minor sentences.Footnote 4
Despite the public outcry over Allied demands for punishment of German war criminals, the so-called extradition question (Auslieferungsfrage) and the subsequent Leipzig trials have received only limited attention in the broader historiography of Weimar Germany. Textbooks and overviews of Weimar's political and cultural history hardly mention them, focusing rather on the general debate over the war guilt clause, the territorial losses, and the economic as well as psychological questions of reparations.Footnote 5 Yet, among contemporaries, the unprecedented Allied demands sparked enormous interest as they epitomized the challenge to Germany's national sovereignty posed by the Versailles Treaty. The debate over the war crimes issue overshadowed the discussion of the war guilt clause.Footnote 6
After a first wave of scholarly interest around 1980,Footnote 7 an upsurge in scholarship on the history of international humanitarian and criminal law in general, and the Leipzig trials in particular, has occurred since the debates on the Rome Statute in the 1990s. Considering the outcome of the criminal proceedings from a juridical perspective, scholars of international law and its history commonly consider the Leipzig trials a failure, if not a disaster.Footnote 8 As Gary Jonathan Bass argues, the demands to put German war criminals on trial divided the Allies in Versailles and, thereafter, undermined the Weimar Republic and strengthened the political right. Moreover, handing over the prosecution to the Germans ultimately failed to produce justice.Footnote 9 After the Second World War, the chief prosecutor at the International Military Tribunal at Nuremberg, Robert H. Jackson, declared in his opening remarks that the Leipzig trials had clearly established that the defeated could not judge their own war criminals. Hence, he argued, an international tribunal was necessary.Footnote 10 In this perspective, the Leipzig trials had affected the development of international humanitarian law and justice only insofar as it had shown how it could not be done. Hence, in the Second World War, the United Nations drew the conclusion that an international tribunal was necessary.Footnote 11 After the confrontation of the Cold War blocked attempts to bring war criminals to justice, according to this view, the situation has changed since the 1990s with the establishment of the International Criminal Tribunals for the former Yugoslavia and for Rwanda, as well as the International Criminal Court in The Hague.Footnote 12
More recent studies following the arguments put forward by Dirk von Selle and Gerd Hankel, however, reach a more nuanced assessment of the trials and their effect on the development of international humanitarian law.Footnote 13 First, they argue that the public debate on the extradition demands and the trials popularized the notion of “war crimes” and the view that not everything was permitted in times of war. Second, although war crimes had been tried according to the principles of national law before, a court referred to international criminal law for the first time to justify the sentence against Benno Crusius.Footnote 14 Third, in the trial against members of the submarine crew who had sunk the British hospital ship Llandovery Castle, the court argued that following orders could not shield a soldier from punishment if the order was obviously contradicting international law—a principle that would also become important in the Nuremberg trials.Footnote 15
Though contradicting each other in their final evaluation, both the negative and the positive assessments evaluate the attempt to hold German war criminals accountable for their deeds and the Leipzig trials in the light of later developments in international humanitarian law. Judged from the perspective of the International Military Tribunal in Nuremberg or even the International Criminal Court (ICC) in The Hague, Leipzig appears either as a failure because justice was not rendered or the trials are redeemed as a developmental step, creating conditions that facilitated later trials (whether as a negative foil or positive example). Moreover, coming from legal scholars or at least assuming their perspectives, both positions share the normative assumption that war criminals should be tried in a court of law and sentenced according to the standards of international humanitarian law.Footnote 16 This stance, however, is in itself historical. Its emergence in the nineteenth and broader acceptance in the twentieth century has to be explained rather than taken for granted.
Thus, for a historical analysis of the Leipzig trials, it seems apt to bracket the question of their juridical success and failure altogether. This approach draws on the growing body of literature on “transitional justice,” that is, the legal mechanisms and commemorative practices by which societies manage the transition from war to peace and come to terms with their violent pasts.Footnote 17 In the context of transitional justice, war crimes prosecutions may be one important element among “truth commissions, purges of perpetrators, reparations, [and] memorials.”Footnote 18 Although the transition is commonly understood as “change in a liberalizing direction” with the goal of bringing human rights abuses to justice, scholars have also warned against the lure of normative and teleological assumptions and instead emphasized the need to scrutinize how universal norms and local practices clash in concrete transitions.Footnote 19 Such a clash occurred at the Imperial Court of Justice at Leipzig after the First World War. Hence, I suggest locating the attempt to prosecute German war criminals not only in the history of international law as an ill-fated precursor to Nuremberg or The Hague but, rather, within the transition from Imperial to Weimar Germany and the establishment of the first German republic and democracy.
Shifting the perspective in this direction, the principles of international humanitarian law and their application were not the only important norms under contestation. The concept of sovereignty, which had been closely connected to the emergence of international law, was also renegotiated after the war as “self-determination” became an important catch phrase.Footnote 20 In particular, German sovereignty was highly contested both internationally by the Versailles Treaty and domestically by political violence and attempts to overthrow the state. Drawing on Stephen Krasner's distinction of different aspects of sovereignty, this article argues that the German government tried to use its limited domestic sovereignty in order to increase its international sovereignty and revise a central clause of the Versailles Treaty.Footnote 21 Situating the Leipzig trials within the political and intellectual culture of Weimar Germany, the article argues that the question of legal success or failure loses its clear meaning from a broader transitional justice perspective. In line with the historiography on war crimes trials, it assumes that their pacifying and stabilizing effect on societies in transition depends on the acceptance of their underlying norms.Footnote 22 That acceptance did not exist in Germany after the First World War. Given the debates around the Leipzig trials and the contested state of German sovereignty, it is unclear what a legally successful prosecution of German war criminals in accordance with international humanitarian law would have meant for the development of the first German democracy. By asking how German sovereignty was contested, negotiated, and reaffirmed, the article historicizes the Leipzig trials and also addresses the more general question of which conditions facilitate international war crimes trials.
First, I will examine how the concepts of sovereignty and international humanitarian law coevolved and interacted from the 1860s to the First World War, focusing particularly on their close connection to the idea of European civilization. Second, this lays the foundation for analyzing how historical actors negotiated competing claims for sovereignty and the application of international law in the context of the extradition question and the Leipzig trials. Finally, I draw some more general conclusions on the relationship between sovereignty and international criminal law.
The Fruits of Civilization—The Coevolution of Sovereignty and International Humanitarian Law
The attempt to prosecute German war crimes after the First World War produced a clash between the principles of international humanitarian law and sovereignty claims. Both concepts have had an intimate and at times paradoxical relationship at least since the second half of the nineteenth century. As outlined in the introduction to this special issue, the concept of sovereignty had emerged in the political and legal theory of the absolutist state, denoting a ruler's claim to supreme authority over a territory against other external or local powers.Footnote 23 Over the course of the nineteenth century, sovereignty emerged as a European norm in international relations. In line with Georg Jellinek's legal theory that a state consisted of a people, a territory, and a government (“Staatsgewalt”), Lassa Oppenheim, one of the leading experts in international law, emphasized that the government had to be sovereign and defined sovereignty as “supreme authority, an authority which is independent of any other earthly authority. Sovereignty in the strict and narrowest sense of the term includes, therefore, independence all around, within and without the borders of the country.”Footnote 24 According to the school of legal positivism, which had grown during the nineteenth century, the sovereign state was the sole source of the law. As Jeremy Bentham and John Austin had argued, this was a necessary assumption if law was supposed to be an autonomous discipline independent of religious and moral assumptions or arguments concerning “human nature.”Footnote 25
Following the tenets of legal positivism, international law had to be conceptualized as contractual law between sovereign states. With the acceleration of technological and economic globalization in the second half of the nineteenth century, the number and importance of international treatises increased; between 1869 and 1885, international law emerged as an academic discipline.Footnote 26 Treatises on “international law,” however, concerned only the so-called civilized world, the European states and North America. Only these states were considered to be sovereign and thus recognized as members of the international community where contractual law prevailed. As Anthony Anghie has shown, this concept of sovereignty and its central position in legal discourses were shaped by the colonial encounter: “sovereignty was constituted through colonialism.”Footnote 27 In order to justify colonial expansion, legal scholars connected the notion of sovereignty to specifically European practices of power, such as the effective rule over a clearly defined territory that did not exist or, at least, that they did not perceive in the non-European world. Because the so-called uncivilized peoples were not sovereign, they could not enter the system of international law and, thus, European states were not bound by its principles in the colonial encounter.Footnote 28 At the Berlin Conference in 1884–1885, “sovereignty” was explicitly treated as a “quality that could attach only to a European possession.”Footnote 29
One of the most important areas in which legal scholars and governments tried to establish international legal principles was military conflict. When Johann Caspar Bluntschli published his treatise on the “Modern International Law of Civilized States,” in which he first used the notion “war crime” in 1868, he opened the book with a letter to Franz Lieber. In the US civil war, the German émigré who taught as a professor of law at Columbia had first codified the permissible and nonpermissible acts of warfare in the Lieber Code, which became a model for later manuals.Footnote 30 Legal scholars did not question war as an essential practice of international relations but rather considered it an “institution of international law” and an “accepted and routine means of conducting everyday international business.”Footnote 31 Yet, with the changing character of warfare and the rise of humanitarian concerns, a group of lawyers, especially surrounding the Institut de Droit International, which was founded in Ghent in 1873, tried to humanize warfare by defining the legal principles of military conflict.Footnote 32 Although jus ad bellum was not questioned, the legal scholars’ activism together with humanitarian nonstate actors and the interests of governments to improve the fate and performance of their soldiers contributed to the codification of jus in bello.Footnote 33 The most important steps of the attempt to humanize warfare were the Geneva Convention (1864) on the medical treatment of wounded soldiers, the Petersburg Declaration (1868) outlawing explosive projectiles, and the Hague Conferences (1899 and 1907) at which the conventions on the principles of land and sea warfare were signed.Footnote 34
Although these agreements formed the legal base for the later definition and trials of war crimes, few European international lawyers discussing the humanization of warfare in The Hague had quarrels with the bloody wars simultaneously occurring in the colonies.Footnote 35 Even in the British Army Field Manual in 1914, Oppenheim emphasized that the rules of international law applied only to “warfare between civilized nations” and not conflict with “uncivilized states and tribes.”Footnote 36 On the one hand, legal scholars and government officials countered public outcries about European atrocities in Africa with the legal argument that their enemies were not sovereign and, thus, not part of the system of international law. On the other hand, they used the pragmatic argument that the so-called “savages” were either too cruel or mentally incapable to follow the rules of humanitarian warfare themselves.Footnote 37 Applying the rules meant to humanize warfare would, in their view, disadvantage the Europeans because the enemy was not capable of reciprocity. Hence, the concepts of both sovereignty and international humanitarian law were rooted in the construction of a European civilization contrasting it with a “barbarian” other. The imagined civilizational distance between Europeans and the others could reconcile the universality of international humanitarian law for the civilized world with unlimited claims for sovereignty in the conduct of colonial warfare.Footnote 38
This reconciliation was more complicated in Europe, where allegedly civilized states fought one another. Although depending on negotiation among sovereign powers, the international legal codification of the principles of humanized warfare conflicted with their national sovereignty to exert military power in every way and to judge the conduct of soldiers according to their own national legal standards. At the Hague conferences in 1899 and 1907, the German delegation was especially reluctant to accept sovereignty-restricting rules.Footnote 39 In the tradition of Carl von Clausewitz, German military experts, most prominently Helmuth Graf von Moltke, maintained that the shortest war was the most humane war and, in order to keep wars short, the military had to use all means necessary.Footnote 40 The concept of military necessity became the argumentative device to overcome international principles of humanitarian warfare.Footnote 41 Whereas the British field manual subscribed to the “customary rules, designed to lessen the sufferings resulting from warfare” and labeled them the “earliest achievement of the nascent science of International Law,” its Prussian counterpart was much more critical.Footnote 42 “Kriegsbrauch im Landkriege” explained that German officers should reject “exaggerated humanitarian views” as the history of war taught that “war cannot be fought without a certain harshness but its relentless exercise often constitutes the only true humanity.”Footnote 43 Officers learned that they should meet “humanitarian demands such as the protection of people and goods … only … in so far as the nature and purpose of war allowed.”Footnote 44
Thus, although Germany had accepted the Hague Conventions, and their principles even entered the field manuals for officers before the First World War, German attitudes toward the binding force of international humanitarian law were ambivalent to say the least.Footnote 45 This ambivalence contributed to the German willingness to breach international law and commit acts that violated the principles of humanitarian warfare from 1914 to 1918.Footnote 46 Immediately after the war began in August 1914, the Allies started to collect evidence of German war crimes with a twofold goal: they wanted to prepare future trials against criminals and use the atrocities in their anti-German propaganda.Footnote 47 Although the Germans tried to justify their deeds arguing that they had been confronted with illegal franc-tireurs, the Allies depicted the Germans as uncivilized barbarians or “mad brute[s]” because they did not follow the principles of civilized warfare.Footnote 48 Grounded in actual German atrocities, the rhetorical decivilization and dehumanization of the Germans was more than just a propagandistic device. Denying the German’ status as a civilized nation was in a way a direct consequence of the close connection between the ideas of civilization and international law: consistently violating its principles, a nation ceased to be considered as civilized and, accordingly, sovereign. Yet, the fact that the British and French governments wanted to hold German soldiers and officers accountable for their violations of international law in court also shows that this loss of civilization was not complete. As Kim Priemel has argued for the International Military Tribunal at Nuremberg, the “betrayal” of civilization served as the paradoxical legitimization for the trial of war crimes. Describing German soldiers as barbarians, they were made to be fundamentally different from their Allied counterparts. Yet, in principle, they were considered capable of following the rules of civilized warfare and had, thus, only betrayed civilization. Otherwise, conducting legal proceedings against the Germans would not have made any sense.Footnote 49 Despite being depicted as barbarian, German soldiers should not be treated as Europeans used to treat alleged “savages” in the colonies but as members of an, in principle, sovereign state.
At the Paris Peace Conference, conceptions of sovereignty and international law clashed when the victorious Allies renegotiated principles of domestic and international sovereignty in their attempt to achieve “peace through law.”Footnote 50 Especially in the “Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties,” conflicts surfaced between the demands to apply international humanitarian law and bring German war criminals to trial, on the one hand, and the goal to uphold principles of national sovereignty on the other.Footnote 51 After British Prime Minister David Lloyd George had used the slogan “Hang the Kaiser” in his election campaign in 1918, the British delegation was committed to bring Wilhelm II to court after the war despite the controversial debates in the British government and press.Footnote 52 Although the French delegation joined the British in the demand to prosecute the kaiser and German war criminals, the US delegation was much more reluctant to infringe on German sovereignty in this respect. US Secretary of State Robert Lansing, a lawyer and renowned expert on international law, adhered to the positivist paradigm that states were the central units of the international system, which could not be bound by nonstate actors.Footnote 53 Hence the US delegation formulated a minority vote, diverging from the resolution of the commission to try the kaiser in front of an international tribunal. Distinguishing between moral and legal responsibility and rejecting the idea that violations against the “elementary principles of humanity” could be legally sanctioned, they argued that “the essence of sovereignty consists in the fact that it is not responsible to any foreign sovereignty” and a “head or agent of state is responsible only to the people who conferred sovereignty upon him.”Footnote 54 Trying the kaiser or even highest government officials who were politically responsible but legally responsible only to national law would, thus, amount to a denial of the very conception of sovereignty.Footnote 55
In contrast to the kaiser, for whom the Versailles Treaty proposed an international ad hoc tribunal, the other Germans accused of war crimes were supposed to be handed over to the existing national institutions of the victorious powers in order to bring them to justice. Although it was common practice to sentence foreign soldiers who had committed crimes in times of war, demanding their extradition after the end of the war seriously challenged Germany's claim to legal authority over its citizens. This demand was part of a broader challenge that the Versailles Treaty posed to Germany's sovereignty. As newer theories of sovereignty assume, sovereignty is a social category: in order to be sovereign, one has to be recognized as such by others.Footnote 56 At the Paris Peace Conference, the Allies did not treat Germany as their equal but negotiated the terms of the peace among themselves. Demanding its ratification even under the threat of resuming military measures, however, they still acknowledged German sovereignty. Yet, signing the Versailles Treaty, the German government gave up sovereign rights in military and economic terms. Moreover, Germany lost sovereignty over parts of its former territory, while for important regions, such as the Rhineland, it was suspended. Due to these infringements of German sovereignty and the attribution of the “war guilt” to Germany alone, the Versailles Treaty met almost unanimous rejection in the German public.Footnote 57 Supporters of the new republic, the governing social democrats, liberals, and Catholics, felt deeply disappointed by former Wilsonian promises of a “peace without victory,” while conservatives and the nationalist right agitated against the revenge-seeking victors and the alleged German traitors who had signed the treaty.
Forsaking and Reclaiming Sovereignty: The Extradition Question and the Leipzig Trials
The challenge to Germany's international legal sovereignty occurred at a time when the state's domestic sovereignty, that is, its capacity to exert political authority over its territory, was constantly questioned and attacked from both the political right and left.Footnote 58 In his famous lecture on “politics as a vocation” in 1919, Max Weber defined the state as the “human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”Footnote 59 Yet in 1919, the democratically elected German government could not command sufficient forces to effectively control political violence in the country. Facing the so-called Spartacus uprising in Berlin in January 1919, the establishment of Soviet republics in Bremen and Munich, and wild strikes, President Friedrich Ebert and his minister of the Reichswehr, Gustav Noske, repeatedly chose to rely on the ultra-right-wing Freikorps units to uphold their authority even though the Freikorps’ allegiance to the new state was more than questionable.Footnote 60 In retrospect, the socialists’ fear of a communist revolution, though fueled by the revolutionary rhetoric of the Communist Party and the Russian example, appears grossly exaggerated but, nevertheless, it guided their actions at the time. The governing social democrats also deemed it necessary to cooperate with the military and suppress any communist unrest as fast as possible because they feared that prolonged disorder or even a revolutionary uprising might serve as a pretext for a right-wing coup d’état.
Against this backdrop, the extradition demands of the Versailles Treaty seemed to endanger the precarious foundation of the Weimar Coalition's rule: its cooperation with the military. Rejecting the Versailles Treaty as a whole, the government deemed the so-called “points of honor” (war guilt, trial of the kaiser, extradition of soldiers) as the most unacceptable. Ebert instructed the German delegation at the Peace Conference in June 1919 to explain to the Entente powers that extradition was the one point that made acceptance of the treaty “impossible for actual reasons.” If set into force, “It is to be expected that immediately all officers of voluntary troops and these troops themselves will run away.” Because the government commanded hardly enough troops to uphold order, “chaos and bolshevism would start immediately.”Footnote 61 After the German National Assembly first accepted the treaty only with the caveat that those clauses would not be implemented, the victorious powers forced the government to sign it in its actual form under the threat of resuming military action.
Although defending the country against an Allied invasion had been no option, conservatives and nationalists relentlessly attacked the government for having allegedly stained the “national honor.” In particular, the Freikorps soldiers themselves became a severe danger to the government. They engaged in terrorism against the political left and representatives of the newly founded republic, actively planning its overthrow.Footnote 62 The extradition demand served as an important psychological mobilization for the extreme right, and officers engaging in counter-revolutionary activities.Footnote 63 As the Prussian state commissioner for the Surveillance of Public Order reported in October 1919, “Every movement against the government was supported by the majority of the officers facing extradition due to the Versailles Treaty.”Footnote 64 In March 1920, the Kapp-Lüttwitz-Putsch confirmed fears of a counterrevolution: faced with a dissolution order, the Freikorps forced the government to leave Berlin, before the coup failed miserably due to poor organization and a general strike.Footnote 65
In the contested establishment of the first German democracy, demands to extradite the kaiser and German soldiers seemed to exacerbate the government's predicament further. In its official and informal communication with the Allies, its representatives emphasized this point repeatedly.Footnote 66 Apart from the independent social democrats and communists, the extradition demands were met with unanimous public rejection, even though majority social democrats were generally willing to punish war criminals and those who had benefitted from and intentionally prolonged the war.Footnote 67 In the case of the kaiser, the hands of the government had been tied anyway since Wilhelm II had fled to the Netherlands in 1918. The kaiser stayed first as a guest of Queen Wilhelmina and then bought a residence at Doorn. Despite being divided over the kaiser's presence, the Dutch government rejected the Allied demand to extradite the kaiser in order to try him in front of an international tribunal. It argued that the charges were too vague and had not constituted crimes at the time when they had been committed.Footnote 68 The US government had opposed the trial from the onset, and the British government and public were divided, while European royalty and the pope mobilized to protect the kaiser from trial. Thus, the French and the British did not insist on the kaiser's extradition but quietly dropped the demand.Footnote 69 When the British, French, and Italians formally requested to surrender the kaiser in January 1920, the Dutch government refused, claiming its neutrality and sovereignty being bound only by national law but not by the provisions of the Versailles Treaty.Footnote 70
At the end of the war, however, German sovereignty was much more precarious than the Dutch, so the government considered it impossible both to reject and to comply with the Allied extradition demand. Therefore, it tried to convince the Allies that the accused war criminals should be tried in front of a German court. To achieve this goal, in December 1919, the German National Assembly ratified the law concerning the prosecution of war crimes (Gesetz zur Verfolgung von Kriegsverbrechen und Kriegsvergehen). Conservatives, nationalists, and militarists rejected this strategy, arguing that no German soldier should be tried as long as Allied crimes remained unpunished. By contrast, social democrats and liberals acknowledged the necessity to punish crimes committed by Germans, whether at home or abroad. In the German National Assembly, social democratic legal expert Otto Landsberg explained, if other countries did not try their war criminals, they lacked a sense of justice. The latter, however, should prevail in Germany.Footnote 71 The independent social democrat Oskar Cohn went even further maintaining that the “tu quoque” argument, which German militarists used frequently to justify war crimes and avert prosecution, only proved the “complete erosion of the sense of justice during the war.”Footnote 72
Despite the government's declared willingness to prosecute German war criminals in front of domestic courts, at first, the Allies insisted on the extradition of German soldiers and politicians whom they accused of war crimes. They transmitted their concrete demand at a time when the German government was in a difficult situation, if not under siege. Less than two weeks before the list became public in early February 1920, for example, an officer cadet attempted to murder the Catholic Minister of Finance Matthias Erzberger when the minister of finance left the Moabit courthouse where he tried to defend himself against relentless attacks by Karl Helfferich, a leading politician of the German National People's Party (DNVP).Footnote 73 There was a huge public outcry over the list of 900 soldiers and officials whom the German authorities were supposed to hand over to the Allied governments so that the head of the German delegation in Paris, Kurt Freiherr von Lersner, refused to accept and transmit the list to the German government. When social democratic Chancellor Gustav Bauer accepted the list and rebuked Lernser, all major German newspapers printed the list name by name.Footnote 74 Although this was only a shortened version of a much longer Allied list, the German newspapers’ reaction to the demand was overwhelmingly negative.Footnote 75
The nationalist press—supported by the Ministry of the Reichswehr—used the list as a tool to prolong its wartime propaganda into the peace and accuse the Allies of seeking revenge, not justice.Footnote 76 “Germany's deepest humiliation” ran the headline in the Neue Preußische Zeitung (Kreuz-Zeitung) on February 5, which expressed the views of the Protestant conservative Prussian elites and supported the DNVP.Footnote 77 The article celebrated von Lersner's refusal to transmit the list while ferociously attacking the social democrats for having stained the “national honor” by accepting it. In their view, a strong rejection would have improved Germany's international esteem, as they purported it would have in the case of the Versailles Treaty. Showing strength and willingness to fight was their only strategy to preserve national sovereignty. The Kreuz-Zeitung depicted the extradition demand as groundless and unlawful, driven only by the desire of the victorious powers to humiliate and destroy the German people. Explicitly, the paper saw it working in its own favor, suggesting that the governing German social democrats should ask themselves whether the “imperialism and capitalism of the Entente states” did not use the extradition demand to topple the “socialist system” in Germany.Footnote 78
And, indeed, social democrats had this impression. According to the Vorwärts, the list seemed to have been composed with the goal to “increase confusion and the government's difficulties in Germany to the highest extent possible.”Footnote 79 Having expected to find people on the list who had “voluntary violated the customs of war,” the Vorwärts expressed its bewilderment to read the names of soldiers who had simply “followed orders,” public officials, and even social democrats. It argued that the composition of the list could not have been guided by the quest for justice but only by the desire to “push the beaten German people further into the dust.” In the liberal Berliner Tageblatt, its chief editor Theodor Wolff called the list a “bad joke” and a disgrace to the Entente powers.Footnote 80 Despite emphasizing that, already during the war, his paper had demanded to prosecute and punish soldiers and officers who had violated the principles of humanity and that he had repeated the call, at the end of the war, in order to avoid Allied demands, Wolff still rejected the list: “All the guilty, everybody who maltreated and tortured the unlucky civilian population, who has stolen foreign possessions or committed even worse deeds must be brought in front of a judge, in front of a court with all guarantees, which is supported by the Entente powers. But we refuse and are not capable to deliver showpieces, whom some voracious triumphator hopes to drag behind his chariot.”Footnote 81 Apparently, it was not the questioning of German sovereignty in principle that enraged Wolff but rather the selective denial and assertion of national sovereignty.
Similarly, the Catholic Germania criticized the Allied demand for justice as dubious because the Allies called for trials only against German war criminals and were unwilling to prosecute their own soldiers.Footnote 82 It maintained that many people on the list could not possibly be guilty because they had simply followed orders and argued that it was more appropriate to try those responsible for the war. Moreover, the Germania suggested that the international Catholic clergy should step in, ending the judicial “hocus-pocus” and “disgusting sensationalist drama” by placing the judgment in “God's hand.”Footnote 83 In contrast to the nationalist press, which only paid lip-service to its willingness to try German soldiers who had violated the customs of law in front of the German courts, the papers of the Weimar coalition expressed much greater openness to the trial of war criminals but rejected their extradition and trial in front of national Allied courts. For them, the selective penetration of national sovereignty did not seem to produce justice but only to increase turmoil and disorder, which would in turn weaken the government's domestic sovereignty.
The German government tried to motivate the Allies to give up their demands pursuing a two-pronged strategy. On the one hand, it emphasized that issuing the special law on Kriegsverbrechen und Kriegsvergehen had laid the groundwork and demonstrated its willingness to judge German war criminals in front of a domestic court. On the other hand, it argued that the Allies had to drop the extradition issue because the German government was incapable of capturing and surrendering the alleged war criminals. Although the initial press reaction in the morning editions on February 5 had already supported this position, the government also tried to orchestrate the public response along these lines. At 10:30 the same day, Chancellor Gustav Bauer explained to representatives of the press that the government lacked the power for direct resistance but could only passively resist the demand. Therefore, it needed the support of the press to deliver the message that the extradition demand was impossible and could not be fulfilled. “I ask you to always emphasize this: Do not say: the government does not want to but it can.… we have every interest to explain: we cannot. It is an impossibility, as we do not have people or institutions capable and willing to execute such orders. You always have to emphasize this inability.”Footnote 84 And indeed, in unison, at least the papers of the Weimar coalition emphasized that it was “actually impossible” to comply with the extradition demand and even that no conceivable German government would and could comply with it.Footnote 85
Partly spontaneous and partly orchestrated, the German rejection of the Allied extradition demand was indeed unanimous and received as such in the United Kingdom and the United States.Footnote 86 According to the London Times, the publication of the list had aroused public opinion in Germany and provoked public sentiment that might, in conjunction with the country's economic and political difficulties, produce a severe crisis.Footnote 87 At length, the Times quoted the official German declaration about why it was actually impossible to fulfill the Allied extradition demand: “The whole of the German nation, without distinction of class or political party, regards extradition as inconsistent with German dignity and honor.”Footnote 88 Therefore, no government could support extradition because it would endanger its reelection. But even if the government attempted to pursue extradition, “The government's orders could not actually be carried out. The officials whose duty it would be to cooperate in the extradition of their compatriots … would not … lend themselves to the arrest of any German to be delivered to the courts of the Entente. The government would be powerless against such an attitude” and find itself “in a difficult position towards the country, Parliament, and the Regular Army, the details of which require no further amplification.”Footnote 89 Stressing the expected resistance from the old bureaucracy and the military, the government thus used the argument that its domestic sovereignty was only limited, that it could not effectively exert control over its territory and successfully monopolize legitimate physical violence in order to increase its international sovereignty and convince the Allies to concede the right to conduct war crimes trials to a German court.
How far was this argument grounded in fact? Even at the highest level of government, there was no willingness to assume responsibility for the extradition of soldiers. Before the list became public, the social democratic Secretary of State, Hermann Müller, had already asked the chancellor to take the competence for the extradition issue away from the foreign office and assign it to the Ministry of Justice or the Ministry of the Interior, while acknowledging that they might be reluctant to take it.Footnote 90 Public opinion beyond the level of newspapers is notoriously difficult to assess. On February 7, the Baden Minister of the Interior reported to the chancellor that “the farmers on the [whole] held the opinion that true criminals should be surrendered [and] they were even willing to name a few others who should be brought to trial. Workers in the factories share this sentiment.”Footnote 91 Yet, there were other reports to the contrary, and Gustav Bauer continued to emphasize that extradition was “factually impossible” because, even if the sentiment in parts of the population changed, it would not change in the army and among public servants.Footnote 92
Because the communist Rote Fahne and the independent socialist paper Freiheit were banned from publication at the time, there were few dissenting voices in Germany that reached the national and international newspaper-reading public. The New York Times quoted the leading independent social democrat Wilhelm Dittmann, who suggested that the German government was bluffing because there were more than a million German workers who were willing to turn over the soldiers immediately.Footnote 93 Yet, in the volatile situation, he had to admit that he was not sure whether he could speak even for his entire party. The New York Times concluded that there were probably many people in Germany willing to enforce extradition but, though some of them believed in justice, others just wanted to increase turmoil and disorder intending to overthrow the republic.Footnote 94
The government of the Weimar coalition could have simply rejected the extradition, as the nationalist and conservative right demanded, by referring to its sovereignty. Yet exactly this sovereignty was internationally questioned. Thus, it decided to emphasize its limited domestic sovereignty, arguing that the Allies could not force it to comply because it was not capable of complying. In contrast to the reparations, in this case, the Allies were unwilling to enforce compliance with the Versailles Treaty by military means. Thus, they suspended the extradition demand and conceded that the accused be tried at the Leipzig court, reserving the right to reclaim extradition if the proceedings did not achieve satisfying results. Contemporary observers could, thus, conclude that the government succeeded in its strategy of using its limited domestic sovereignty to achieve a sovereignty gain on the war crimes issue. At least, this is how the German social democrats presented the case, celebrating that they had convinced the Allies of the “actual impossibility” to surrender the suspected war criminals as a “victory of reason.”Footnote 95 Ebert even thanked the German people for having expressed their deep rage because this reaction had enabled the government to assume a staunch and calm position.Footnote 96 After the extradition demand had only strengthened the revanchist powers from the right, the Vorwärts argued that now German nationalists had to decide whether they wanted to protect criminals. Explicitly contradicting the right-wing extremist Ernst Graf von Reventlow, who had asserted that there were no real war criminals on the Allied list, the Vorwärts could now underline the necessity of judicial trials in order to determine guilt or innocence.Footnote 97
Similarly, the Berliner Tageblatt argued that the government had scored a significant success when the Allies accepted trials in Germany. Although some papers still denied that for reasons of “stupidity or frivolity,” the authors also observed cracks in the nationalist press.Footnote 98 Relating the events to a universally shared goal, the Berliner Tageblatt conceptualized the Allies’ acceptance to drop extradition as a first step toward the revision of the Versailles Treaty.Footnote 99 The Neue Preußische Zeitung, indeed, had great difficulties denying that the government's strategy had contributed to the revision of one of the most contentious clauses of the Versailles Treaty. Under the telling title “An ‘Indisputable Success’?,” it did not so much argue that the government had failed but rather tried to disseminate doubt that it had been as successful as claimed.Footnote 100 Painstakingly, it elaborated alleged differences between the Allied note and its German interpretation and purported that the German government was overly optimistic suggesting the Allies would use the reservation clause and reclaim the right to conduct the trials themselves.
When the German National Assembly debated minor revisions of the law on the prosecution of war crimes on March 4, 1920, a similar constellation emerged. A little more than a week before the Kapp-Lüttwitz-Putsch, the political right was surprisingly quiet when the liberal Minister of Justice claimed that “defenseless and unprotected morality” had prevailed over “brutal force” when the Allies changed their position so that the accused would be judged “on German soil, according to German law, by German judges.”Footnote 101 Under strong approval from the left and objections from the right, his liberal party colleague, Bernhard Falk, argued that the “government had shown strength, which had raised its esteem among the Allies and led to this success.”Footnote 102 Ignoring that the government admitted to its weakness, its lack of domestic sovereignty, Falk and others claimed that the government had done exactly what the nationalists always demanded, namely successfully revised a clause of the Versailles Treaty and acted in accordance with the people's wishes.
From the beginning of the trials, the right-wing press generally raged against the fact that Germans were put on trial at all. Together with many legal experts, it celebrated the acquittals, praising the judges’ objectivity while still insinuating that the Allies had committed more atrocious crimes, which remained unpunished.Footnote 103 After the sentences against the two submarine crew members who had torpedoed the British hospital ship Llandovery Castle as well as several lifeboats, however, even conservatives became a little more nuanced. Still writing “war criminal” only in quotation marks, the Neue Preußische Zeitung emphasized that it did not want to protect soldiers who had committed real crimes from their just sentences as long as the other side applied the same standards.Footnote 104 Considering the evidence, it argued that the court could not have reached another verdict thereby acknowledging that the defendants had violated international law. In their defense, the author could only point out that they had wanted to serve the emperor and the country, describing the events as a tragedy and maintaining that “matters of war would naturally not always stay within the limits of international law.”Footnote 105
The republican press praised the verdict as evidence of the court's impartiality.Footnote 106 The Germania acknowledged that torpedoing the Llandovery Castle had “objectively violated international law.”Footnote 107 Even stronger than the liberal Tageblatt, the social democratic Vorwärts emphasized that the judgments were no indication of a specifically German tendency to commit war crimes but rather a normal byproduct of modern warfare.Footnote 108 “Today, we just want to repeat that we consider war criminals as an ingredient every nation brought to the world war.… War unleashed the beasts in all countries.”Footnote 109 Therefore, the Vorwärts expressed its hope that the trials would uncover enough material in all participating countries to demonstrate that not only the German but all governments participating in the war deserved to be called “criminals against humanity.”Footnote 110 Some social democrats went even further, claiming the need to overcome national sovereignty. Reviewing Article 227 of the Versailles Treaty and the demand to bring the kaiser to court, Eduard Bernstein argued that trying a head of state could not be done as the Allies had proposed; he demanded a “democratically reformed international law.”Footnote 111 As long as the principles of international law and especially the “inviolable sovereignty” of every single state were upheld, it would not correspond to socialist principles to conduct a trial only against one country. In retrospect, the renowned liberal journalist Maximilian Harden developed a similar assessment of the Leipzig trials. Sharing the assessments from Paris and London that Leipzig amounted to a judicial comedy, he offered more general pacifist reasons. Describing war as the “organized madness of the peoples,” he suggested that the principles of humanitarian law were nuances that the simple soldier could not understand.Footnote 112
From a purely juridical point of view, the Leipzig trials have often been considered a failure because, due to the court's political leanings and apparent unwillingness to produce convictions, the many investigations led to few trials and even fewer convictions with only small sentences. Thus, the anti-militarist left and, in particular, the French and Belgian governments called the trials a farce or a disaster. The head of the British delegation to Leipzig, Solicitor-General Sir Ernest Pollock, however, was less critical.Footnote 113 Against demands to try German soldiers on British soil, he argued counterfactually but not implausibly that this would turn every convict into a hero of the German right.Footnote 114 Considering the nationalist sentiment after the First World War and the conservative outlook of the German judiciary, which had been formed in Imperial Germany, the outcome of the trials could not have come as a surprise. If that was the case, why did the Allies agree to let the Germans prosecute their war criminals in front of German courts? And why did they not resume the extradition demand when they saw that justice was not achieved as the German right had prophesized? Due to inner fractions and divisions that had already shaped negotiations at Versailles, the combined Allied will to try German war criminals was apparently not sufficient to actually enforce it.Footnote 115 Yet, this observation merely describes the decision in other words but does not explain it.
More explanatory power comes from assessing the entangled claims and denials of sovereignty and civilization. In transitional periods from war to peace, achieving justice for past crimes is one quest among others, such as stability and economic reconstruction. As the literature on transitional justice has established, a tension often arises between the goals of historical justice and future stability.Footnote 116 The German government exploited this tension when it argued that the attempt to extradite German war criminals would destabilize and endanger the republic. Even acknowledging the orchestration of public outrage against Allied demands by the government and the press, it was not an unfounded fear that a more thorough attempt to extradite and punish war criminals would have strengthened the radical right and weakened the republic. Counterfactual history is notoriously difficult, but it seems at least plausible that the Kapp-Lüttwitz-Putsch in March 1920 would have gained more support had the government started to extradite German soldiers and public officials only a month earlier. The goal of stabilization seems to have outweighed the quest for justice even among the Allies who were unwilling to resume military action in order to enforce their demands. Correspondingly, despite having depicted German war crimes as breaches of the principles of civilization and not negotiating the terms of peace with the Germans, the Allies did not go as far as to completely deny Germany's status as a civilized nation and sovereign power. They circumscribed German territorial as well as its economic and military sovereignty but did not try to overcome it in principle. With respect to international humanitarian law, preserving German sovereignty was a goal expressed by the American delegation at Paris and later acknowledged by the others when they agreed that the Germans try the war criminals themselves to avoid further destabilization.
The latter can be demonstrated by comparing the treatment of Germany with the Ottoman Empire, which was considered to be on a lower civilizational level. During the First World War, international observers and the Allies had denounced the Armenian genocide as a “crime against humanity and civilization” and demanded prosecution against its perpetrators.Footnote 117 Even though the results of the subsequent trials were also not satisfying from a judicial point of view and international lawyers described them as a failure, their conduct at Istanbul differed significantly from Leipzig.Footnote 118 Since the beginning of the nineteenth century, the British government had understood itself as the guardian of the Christian minority in the Ottoman Empire—a claim that was formally acknowledged at the Berlin Congress in 1878.Footnote 119 Entertaining military outposts in the country, the British treated it as part of their informal empire and were, thus, capable of pressuring the sultan to conduct trials against war criminals. Between 1919 and 1922, more than one hundred high-profile suspects, including government ministers, governors, and military officers were arrested and tried resulting in the “execution of three minor officials for ‘crimes against humanity.’”Footnote 120 Dissatisfied with the speed and results of the trials, the British detained suspects themselves, deporting forty-one of them to Mudros and Malta.Footnote 121 Due to an assumed civilizational distance and its own civilizing mission, Ottoman sovereignty was apparently not an issue that might have questioned the British actions because they did not face international protest or resistance. Only when the Turkish nationalist Mustafa Kemal Atatürk arrested twenty-nine British soldiers was the British military willing to exchange prisoners and drop the prosecution.Footnote 122 In contrast to the Germans, who relied on their acceptance as a sovereign state and used threat of losing control domestically, the Turks claimed international sovereignty using a strategy of strength, acquiring domestic sovereignty by military means.
Conclusion: Sovereignty, International Law, and Transitional Injustice
Sovereignty and international criminal law have an intricate and yet paradoxical relationship. Both concepts were deeply influenced by the construction of a European civilization as opposed to an uncivilized, colonial other. The paradox arose because, on the one hand, according to legal positivism, sovereign states were the source of law, and international law could only be constructed as contractual law between sovereign states. In this sense, sovereign states negotiating in The Hague and elsewhere made international humanitarian law possible. On the other hand, state claims to sovereignty were the most significant obstacle to the successful implementation of an international criminal law. Governments used sovereignty to shield their soldiers and government officials from the accusation and prosecution as war criminals.Footnote 123
This paradox still persists today with the United States, Russia, and China having not signed the Rome Statute; it emerged fully fledged after the First World War with the Versailles Treaty and the attempts to revise it. The Allies demanded to try the kaiser and 900 German soldiers and officials not only because they deemed them responsible for the war and various atrocities, but also because Germany was still considered a sovereign member of the international society. The Versailles Treaty circumscribed and infringed on German sovereignty but did not generally renounce it. Had a tribe of so-called “uncivilized savages” committed similar deeds, a trial would have made no sense because the laws of war were not deemed to apply to them anyway. The acceptance of Germany's sovereignty and its belonging to the society of in principle civilized nations thus formed the basis for the demand to conduct judicial proceedings. Yet, simultaneously, the decision not to undermine German domestic sovereignty further by enforcing the extradition of Germans to be tried in front of Allied courts prevented an international legal prosecution that might have fulfilled the expectations of international criminal law. As the comparison with the trials in the Ottoman Empire suggests, notions of civilizational proximity and distance were crucial in determining how far the Allies, and particularly the British, were willing to implement principles of humanitarian law. Emphasizing that, in contrast to the Ottoman Empire, the British alone lacked the military means to capture and try German soldiers just stresses the connection between civilization and military power. When the Turks were able to capture British soldiers, they were suddenly recognized as sovereign negotiating partners. Despite the drive toward international legal institution building after 1919 and academic questioning of state sovereignty, it remained an important category determining international relations.Footnote 124
In addition, the attempt to prosecute German war crimes after the First World War shows that war crimes trials cannot be understood in isolation, and determining their success or failure in juridical terms is not sufficient.Footnote 125 Rather, they have to be interpreted within the broader ensemble of measures and instruments to manage the transition from war to peace. These measures, commonly described as “transitional justice,” pursue two often competing goals, namely, to establish justice for past crimes and to stabilize the new order by preventing the resurgence of war and violence. In concrete transitions, the two goals are often at odds because the criminal investigations and trials lead to stability only when the underlying judicial norms are either accepted or their acceptance can be enforced. This was not the case in Germany after the First World War. Traditionally in Germany, principles of humanitarian warfare were accepted only to a lesser extent than in other countries. Only the parties of the Weimar coalition, social democrats, liberals, and Catholics, were willing to accept international law as nationally binding, but even they rejected the idea of Germans being tried in front of Allied courts as long as there was no reciprocity. Even if the German government had tried to comply with the extradition demand, it would have depended on the cooperation or at least toleration of the military. Hence, the government used its limited domestic sovereignty as an argument to enhance its international sovereignty. When the Allies allowed trials in front of German courts, the German government referred to this partial revision of the Versailles Treaty to try to foster its domestic authority.
If we situate the Leipzig trials within an overall process of transitional justice, it is not convincing to describe them as failures because they led to only a few convictions. That is not to say they were successful, even though they created a precedent for later trials, disseminated the notion of “war crimes,” and opened a space for discussing the atrocities and crimes of the preceding war. Rather, the question of success and failure is meaningless if its answer is confined to the judicial outcome of the trials. Considering the public sentiment and domestic power relations in Weimar Germany, in which the government depended on collaboration with the military and the old administrative elites, it is unclear what a legal success would have meant politically for the newly established republic. Most likely a serious government attempt for extradition or a domestic mass trial with many convictions would have thoroughly undermined and not strengthened it. When viewed in the light of the general transition, the idea of judicially “successful trials” becomes questionable in itself. One might even say that transitional injustice at Leipzig contributed to the stabilization of Weimar Germany—a development not unlike the integration of former National Socialists in the early years of the Federal Republic. Taking sovereignty into account, it is also misleading to describe the Leipzig trials as the “prologue to Nuremberg.” Focusing on the interplay among sovereignty, civilization, and international humanitarian law, Leipzig—and the whole war crimes issue after the First World War—rather shows what made the Nuremberg trials possible. The latter were the consequence of both the monstrosity of German crimes and the loss of state sovereignty in 1945.
