Each week, The Gaggle Book Club recommends a book for Gagglers to read and—most important—uploads a pdf version of it.

Our practice is that we do not vouch for the reliability or accuracy of any book we recommend. Still less, do we necessarily agree with a recommended book's central arguments. However, any book we recommend will be of undoubted interest and intellectual importance.

Today's book club selection is William A. Schabas’s “The Trial of the Kaiser.” Published in 2018, Schabas's book recounts how, after World War I, the victorious Allies began seriously to plan putting Kaiser Wilhelm II on trial for responsibility for the Great War. This was envisaged by Article 227 of the Treaty of Versailles, which declared

"The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties. A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defence. It will be composed of five judges, one appointed by each of the following Powers: namely, the United States of America, Great Britain, France, Italy and Japan."

The event never materialized, chiefly on account of a lack of enthusiasm on the part of the United States and of a reluctance to extradite the Kaiser on the part of the Netherlands. However, Schabas insists on treating the proposed prosecution as a serious legal project and undertakes a serious critical examination of what an indictment might have looked like.

Schabas, a legal scholar of international renown and an enthusiastic proponent of international criminal tribunals, naturally argues that the proposed, but eventually aborted, trial of the Kaiser, heralded the birth of modern international criminal justice, which eventually culminated in the Nuremberg Tribunal, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court.

At the 1919 Paris Peace Conference, Allied leaders—especially French Prime Minister Georges Clemenceau and British Prime Minister David Lloyd George—argued that Kaiser Wilhelm had planned and initiated the war through aggressive military build-up and mobilization orders. They also argued that his regime had violated Belgian neutrality, thereby making the war he launched illegal under international law. As commander in chief of the armed forces of Imperial Germany, he bore ultimate command responsibility (though such concepts had not yet come into vogue).

Soon, though, some of the Allies began to distance themselves from the project. The United States, in particular, argued that Article 227 was not based on existing international criminal law; rather, it was a moral-political accusation, without a legal statute or precedent. U.S. legal experts, including Secretary of State Robert Lansing, were deeply uncomfortable with retroactive justice. Lansing warned that punishing a head of state for conduct that had not previously been declared criminal violated the principle of legality (nullum crimen sine lege).

Moreover, since the United States never ratified the Treaty of Versailles, it was not legally bound by Article 227. American public opinion was more focused on bringing troops home, demobilization and post-war economic adjustment. There was little interest in punishing European rulers, particularly rulers, such as the Kaiser, who belonged to an era now very much in the past.

The Netherlands made clear that they would not extradite the Kaiser. The Dutch argued that extraditing him for an offense not yet defined in law violated the principle of legality. Also, the Dutch had no extradition treaty with the Allies for political offenses. There was no international tribunal or codified procedure for such a trial. No clear criminal statute had been violated under pre-1914 international law.

France remained interested, but Great Britain began to grow uneasy, fearing instability in Germany, and a possible upsurge of sympathy for the former emperor. Neither Japan nor Italy showed much enthusiasm about moving forward with the trial. As often happened during the interwar years, France was left isolated.

Not surprisingly, William Schabas's “The Trial of the Kaiser” argues that the effort to put the Kaiser on trial—even though it was soon abandoned—signified an intellectual pivot toward holding political leaders--and especially heads of state--personally accountable for war crimes. Schabas, commendably, does not pronounce on the Kaiser's guilt or innocence. The book is an interesting read on a historical episode now long forgotten, an episode in which, for once, common sense prevailed.