The Trial of the Kaiser
By William Schabas
OUP, 412pp, £25/$35
“We’re going to hang Jeff Davis from a sour-apple tree,” sang Yankee soldiers. But though the president of the Confederacy was put in leg-irons and imprisoned, he wasn’t put on trial, let alone hanged. Nor was Kaiser Wilhelm II, despite the British election call to “Hang the Kaiser”, and the French prime minister Georges Clemenceau’s view that a trial of the Kaiser “would be one of the most imposing events in history, and that the conception was well worthy of being pursued”.
Of course the cases of Davis and the Kaiser were very different. Davis, in the opinion of the US government, was a rebel.
The Kaiser was the head of state of Imperial Germany. Yet the question of how to deal with a defeated enemy applied in both cases. There were plenty of precedents in the case of a failed rebellion; not so for a head of state whose country has lost a war. Napoleon hadn’t been put on trial but was conveniently shipped off to St Helena instead. Nor did international law, itself still in an early state of development, offer any satisfactory guidance.
By 1945, things would be different. The crimes of Nazi Germany were so terrible, and Germany itself had been so thoroughly defeated, that there was general agreement that the Nazi leaders should be put on trial and held publicly to account – even though Churchill had expressed a preference for putting them up against a wall and shooting them. Even so, the great Nuremberg trials would not be entirely satisfactory, not least because Hitler had escaped justice by killing himself.
More disturbing was the unavoidable role of the Soviet Union. It had, of course, played the major part in the defeat of Germany, but in 1939 it had been Germany’s ally – and if the German invasion of Poland was a war crime, so was the complementary Russian one. Nuremberg may have been right and necessary, but it was also an example of “victors’ justice”.
Still, in 1918-19 there were many, among them the moralistic President Woodrow Wilson, eager to demonstrate Germany’s war guilt by putting the Kaiser on trial. However, apart from doubts as to the legality of a trial, there was one obstacle that would prove insuperable. The Kaiser, having abdicated and fled from Germany, had found refuge in the Netherlands, and the Dutch government had no intention of extraditing him. This provoked one comic-opera episode: an attempt by Luke Lea, an American colonel who was also a senator, to kidnap the Kaiser.
Eventually enthusiasm for the Kaiser’s trial ebbed, partly on account of Dutch intransigence, partly because of the passage of time and awareness of the unsatisfactory nature of the Versailles Treaty. So the Kaiser lived undisturbed at the Castle of Doorn in the province of Utrecht, occupying himself in chopping wood and reading PG Wodehouse.
If the Kaiser had indeed been put on trial, it would have been as a representative figure, the symbol of Germany’s war guilt. Though he was head of state, the Kaiser was hardly responsible for the 1914 war as Hitler unquestionably was for World War II. The Kaiser was boastful, rash and given to extreme opinions, but also weak and inclined to panic – so much so that in the last hours before war broke out, he tried to draw back, only to be told by the General Staff that it was too late.
Likewise, he couldn’t be held personally responsible for the crime of breaching Belgium’s neutrality. The Schlieffen Plan required an invasion of Belgium, and that was that. The worst that can be said is that the foolish Kaiser didn’t object to it.
Germany undoubtedly bore a prime responsibility for war, egging on Austria-Hungary to make unacceptable demands on Serbia; and the High Command was eager for war with Russia, sooner rather than later, because it feared that Russia’s rapid industrialisation would tilt the balance of power in its favour. But the truth was that all the other powers had a reason for wanting war in 1914. No country bore the sole guilt for war.
Some of the most cogent objections to a trial came from the Vatican. The secretary of state, Cardinal Gasparri, pointed out that the proposed tribunal “could not determine either the immediate or the remote causes of the conflict without considering the relevant diplomatic documents”. He asked: “Are the victorious powers willing to open the archives of their chancelleries?” A question expecting – and getting – the answer no.
Meanwhile the Pope, Benedict XV, told President Wilson that a prosecution “could only render more bitter national hatred and postpone for a long time the pacification of souls for which all nations long”.
Professor Schabas explores the whole question of a trial with erudition and discrimination. His book will be of special interest to lawyers and students of international law, but it is written with the general reader in mind too. Its lucidity and good sense make it an attractive and always interesting work of scholarship.