Siegert on State Liability in the First World War

[We have the following book announcement from our friends at Max Planck.  DRE]

The Max Planck Institute for European Legal History just published a new volume in its book series Studien zur europäischen Rechtsgeschichte: Philipp Siegert, Staatshaftung im Ausnahmezustand: Doktrin und Rechtspraxis im Deutschen Reich und in Frankreich, 1914-1919.

The First World War is sometimes called the 20th century's "primordial catastophe." It raised diverse legal questions and led to a host of fundamental changes. In volume 322 of the MPIeR's book series Studien zur europäischen Rechtsgeschichte, which has just been published, Philipp Siegert examines state liability law in Germany and France between 1914 and 1918. On the basis of a detailed analysis of both French and German archival sources, he analyses states' legal responsibility during such a state of emergency and identifies categories of "legitimate" and "illegitimate" state action that, however, were either non-existent in pre-war international law or even contradicted it. Nevertheless, these were subsequently sanctioned by the peace treaties, and even a century after 1919 remain part of the international order. The ways in which destruction, expropriation and economic war measures carried out by France and Germany were assessed and sanctioned is highly instructive for the question of state liability in international law today.

Waxman on Hughes and the War Power

Matthew C. Waxman, Columbia Law School, has posted Constitutional War Powers in World War I: Charles Evans Hughes and the Power to Wage War Successfully, which appeared in  the Journal of Supreme Court History 44 (November 2019): 267-277:

Charles Evans Hughes (NYPL)

On September 5, 1917, at the height of American participation in the Great War, Charles Evans Hughes famously argued that “the power to wage war is the power to wage war successfully.” This moment and those words were a collision between the onset of “total war,” Lochner-era jurisprudence, and cautious Progressive-era administrative development. This article tells the story of Hughes’s statement—including what he meant at the time and how he wrestled with some difficult questions that flowed from it. The article then concludes with some reasons why the story remains important today.

--Dan Ernst

Bohrer on the Attempt to Try the Kaiser

Ziv Bohrer, Bar-Ilan University Faculty of Law, has posted The (Failed) Attempt to Try the Kaiser and the Long (Forgotten) History of International Criminal Law: Thoughts Following The Trial of the Kaiser by William A Schabas, which appears in the Israel Law Review 53 (2020): 159-186

Kaiser Wilhelm II (NYPL)

The conventional historic account maintains that International Criminal Law (ICL) was ‘born’ after the Second World War. This account is incomplete, as William Schabas’s book – The Trial of the Kaiser (2018) – captivatingly shows, by richly portraying the (aborted) First World War initiative to try the German Kaiser in an international tribunal. But, this article (after providing an overview of Schabas’s book) argues that Schabas’s account, of a First World War ICL ‘birth’, is also incomplete. First World War-era ICL was but one link in a much longer historical chain. The article demonstrates this fact by presenting certain elements of ICL’s long (forgotten) history that provide answers to questions that have been left unanswered, not only by the conventional account (of a Second World War ICL ‘birth’), but also by Schabas’s account (of a First World War ICL ‘birth’). As the article shortly discusses, the unveiling of a greater ICL history indicates that international criminal tribunals were not a modern innovation, as well as reveals the origins of ‘crimes against humanity’, of ‘aggression’ and of the universal jurisdiction doctrine. The article further discusses reasons for the dis-remembrance of ICL’s long history, the importance of acknowledging that history and the likelihood of it becoming widely acknowledged any time soon. 

--Dan Ernst

Weekend Roundup

• From the Washington Post's "Made by History" section, Louis Masur (Rutgers University) on "Why It Took a Century To Pass an Anti-Lynching Law"; Christopher Petrella (American University) on "What We Get Wrong about the 'Poor Huddled Masses'"; and more.

• Some CFPs for junior scholars: the LSA's Junior Scholars Workshop Call is now out here. The deadline is Jan.15, 2019. The University of Michigan Law School's Junior Scholars Conference Call is here, for the 5th annual version. Applications due Jan.12, 2019.

• There's nothing new about soldiers' post-war struggles with mental illness and domestic violence. Jessica Butler's take on WWI veterans and violent crime against family members (H/t: Nursing Clio)

• With the AHA annual meeting happening now in Chicago, there's good job interview advice about, including this Twitter thread by Beth Lew-Williams and this one by Claire Potter.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Schabas's "Trial of the Kaiser"

William A. Schabas, professor of international law at Middlesex University in London, has published The Trial of the Kaiser (Oxford University Press):

In the immediate aftermath of the armistice that ended the First World War, the Allied nations of Britain, France, and Italy agreed to put the fallen German Emperor Kaiser Wilhelm II on trial, in what would be the first ever international criminal tribunal. In Britain, Lloyd George campaigned for re-election on the slogan 'hang the Kaiser', but the Italians had only lukewarm support for a trial, and there was outright resistance from the United States.

During the Peace Conference, international lawyers gathered for the first time to debate international criminal justice. They recommended trial of the Kaiser by an international tribunal for war crimes, and the Americans relented, agreeing to a trial for a 'supreme offence against international morality'. However, the Kaiser had fled to the Netherlands where he obtained asylum, and though the Allies threatened a range of measures if the former Emperor was not surrendered, the Dutch refused and the demands were dropped in March 1920.

This book, from renowned legal scholar William A. Schabas, sheds light on perhaps the most important international trial that never was. Schabas draws on numerous primary sources hitherto unexamined in published work, including transcripts which vividly illuminate this period of international law making. As such, he has written a book which constitutes a history of the very beginnings of international criminal justice, a history which has never before been fully told.