Trying the Kaiser: The Origins of International Criminal Law

Abstract

In late 1918 the Entente powers proposed trying the just-abdicated Kaiser and his subordinates for starting the war and committing crimes during its course. Policymakers and jurists not only set out an international jurisdiction over war crimes for the first time; they also proposed new categories of crimes (the precursors to ‘crimes against peace’ and ‘crimes against humanity’). In the process, they engaged in sophisticated debates about the implications of these steps – arguments that would later be rehashed at Nuremberg. Here, we will examine these original perspectives, focusing on the work of the official advisors to the British and French governments – including John Macdonell, John Morgan, Ferdinand Larnaude and Albert Geouffre de Lapradelle – as well as three influential commentators: the French jurist, Louis Le Fur, the American lawyer, Richard Floyd Clarke, and the British official, James Headlam-Morley. Over the course of just eight weeks, from late October to early December 1918, they turned their attention to the proposed trial of Wilhelm II, and offered strikingly prescient insights into the issues that shaped – and would continue to shape – international criminal law.

Keywords: International Criminal Law, Wilhelm II, World War I, crimes against peace, crimes against humanity

JEL Classification: K33