After we win, do we punish them? The Great War Victor's Dilemma

World War Wednesday

Photo by Wesley Tingey on Unsplash

Welcome to World War Wednesday, a weekly dive into the continuous, thirty-year epoch of global conflict from 1914 to 1945. Here, I strip away popular myths to analyze the dynamics of industrial warfare, institutional behaviors, and the ideologies that shaped the world we inherited.

Par in parem non habet imperium
An equal has no authority over an equal

The Westphalian system of international relations established the modern understanding of sovereignty, but it also created a problem regarding accountability among states. If sovereigns are truly sovereign, who can judge them?

In the 20th century some American commentators mocked the idea of war as a police action, but they revealed their lack of understanding of the Western heritage: any war that was not for conquest could carry this connotation. Thomas Aquinas explicitly links war to a judicial action both in the right of the sovereign authority to wage war and in the denial of private persons to make a war because the private individual could appeal to their domestic law courts for settling a problem or filing a complaint. War was for when you could not do that, when a king wronged another realm, you called for the knights.

There were exceptions. Prior to the Reformation, all Western Europe could make use of canon law. If there was a dispute that touched on matters of faith and morality, princes could appeal to Rome and ask the Pope and his curia to mediate. Kings often invoked the Church in treaties between one another, which elevated them to covenants which could bring in the religious authorities if someone breached an agreement. While arbitration was an option, so was resorting to the battlefield. Even regarding domestic matters, there was a responsibility of a ruler to act against a fellow prince who was internally oppressive. Italian scholar Alberico Gentili (1552–1608) and Dutch scholar Hugo Grotius (1583–1645), both considered to be “fathers of international law” upheld the view that princes could in fact judge princes, which was counter to an absolute claim of par in parem non habet imperium: a sovereign could act against another ruler when that leader violated natural-law such as by being a tyrant or committing an atrocity.

After the Thirty Years War (1618-1648) the right to intervene in cases of domestic oppression fell by the wayside and wars of ambition became more prominent and less religiously inflected. Secular did not equal more peaceful, and you had fewer guardrails. However, the Great War challenged the sovereign immunity principle, and the Second World War overturned it.

The problem was this: is losing the war and merely being made to stop sufficient punishment for someone who has done great harm? Should they continue to live in their palace? Or in a comfortable mansion in exile, leaving behind the ruined lives of others?

For example, should Kaiser Wilhelm II be tried as a war criminal?

For many, the principle of sovereignty argued that if Germany was a sovereign state, then its emperor could not have his actions audited as an individual after the fact by the victorious powers. Germany was beaten and his dynasty overthrown; that was enough.

The second time around, after the Holocaust, the Nanjing Massacre, and other atrocities, a consensus developed that letting the men who ordered those horrors retire in comfort as defeated warlords was unacceptable. However, what made such judgements ethical given the understanding of sovereign immunity? What right did the Allies have to put the Nazis on trial? Were the trials in Nuremburg and Tokyo nothing more than victor’s justice, and did such justice have any moral authority?

To solve that dilemma the Allies created institutions and internationally agreed understandings around human rights and atrocity such as the Genocide Convention (1948) and Geneva Conventions (1949). Furthermore, the UN’s International Law Commission formalized the justification and reasoning behind the Nuremberg International Military Tribunal into the Nuremberg Principles (1950). The concept that individuals exercising sovereign authority could be held to account by the rest of humanity was carried forward decades later with the creation of the International Criminal Court.

But at the end of the First World War, the question was opened and unsettled. In the history of the world wars, the German Kaiser remains the exception.¹

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1. Which happens to be the name of the film I will soon review for subscribers.