the Allies and enemies alike as the peace preliminaries set out in Secretary Lansing's letter of Nov. 5 1918.
In accordance with this principle, the Treaty of Versailles provided for plebiscites in several cases where the population was mixed. This method was prescribed by the Treaty of Versailles for contested areas of Schleswig between Denmark and Germany (Article 109); Allenstein between Germany and Poland (Article 94); Eupen and Malmedy between Belgium and Germany (Article 34) ; Marienburg between Germany and Poland (Article 96) ; Saar Basin, between Germany and France (Article 49); and Upper Silesia between Germany and Poland (Article 88). Provisions were made for applying the same method to an area between Poland and Czechoslovakia (Teschen). In all these cases the provisions of the Treaty vary as to methods and period of voting, and in one case at least the construction of the Treaty differs. Thus under Article 88 of the Treaty relating to Upper Silesia that Treaty states that " the inhabitants will be called upon to indicate by a vote whether they wish to be attached to Germany or to Poland." The vote was taken and proved favourable to Germany. The concluding paragraph of the article, however, provides that Germany will renounce in favour of Poland " all rights and title over the portion of Upper Silesia lying beyond the frontier line fixed by the Prin- cipal Allied and Associated Powers as the result of plebiscite." This wording was interpreted by Poland to provide for the par- tition of Upper Silesia, whereas Germany regarded it as relating only to the line of the frontier of Upper Silesia. The wording of Article 6 of the annex, however, speaks of " the territory which is recognized should be German," and Article 5 of " the line which ought to be adopted as the frontier of Germany in Upper Silesia." And the same article provides that " regard will be paid to the wishes of the inhabitants as shown by the vote and to the geographical and economic conditions of the locality." Furthermore, Article 90 provides that " Poland under- takes to permit for a period of 15 years the exportation to Ger- many of the products of the mines in any part of Upper Silesia transferred to Poland in accordance with the present Treaty." Thus, although the first paragraph of Article 88 seems to imply that Upper Silesia is indivisible, the subsequent provisions of the Treaty do not bear this out. The injunction that regard be paid to " the geographical and economic conditions of the locality " might seem a firmer ground for the German case than any of the above interpretations.
The principle of self-determination is essentially an idea perti- nent to high political development. To ask an ignorant popula- tion which has never had the benefit of elementary education, cannot read a newspaper, and is necessarily dependent on one who has some education for its intercourse with the outer world what its " ideals " are, is calculated, however, to turn the notion of self-determination into ridicule. The question how far a population is capable of self-determination was not considered by those who gave effect to the principles in the Treaty of Peace. Yet it was obvious that a population possess- ing a highly developed social and political intelligence, such as the inhabitants of Schleswig, was in a better position to express an independent wish than an illiterate population like the miners and agricultural hands of Upper Silesia.
ii. Penalties for Violation of the Laws of War. The Hague Convention with respect to the laws and customs of war of 1907 provides for the case in which the regulations annexed to the convention should be violated in the following terms (Article 3) : " The belligerent party who shall violate the provisions of the said regulations shall be bound, if the case arises, to pay an indemnity. It shall be responsible for all acts done by per- sons forming part of its armed forces." The words in italics, read in the French original, are tenue a indemnity, which may be better construed as meaning to " make amends." This article was an addition made in 1907 to satisfy the then growing public feeling that it was not enough to lay down rules, and that some sanction ought to be available against infringers.
The article confined itself to a statement of the principle and left untouched the question of the authority which is to give it
effect. The universal principles of justice, however, exclude tl idea that any party to a dispute should be his own judge. Th entails the necessary corollary that the determination of th amends to be made shall lie with an independent authority. It was therefore with surprise that jurists learned from th Treaty of Versailles that the Allies had imposed, and that Ger- many had accepted, provisions in the Treaty which disregarde this principle and laid it down that only violations of the lavi and usages of war by Germans should be brought to trial, and that the tribunals before which they should be brought wer the military courts of their late enemy.
It is true that the German Government before signing th Treaty protested against provisions forcing Germany " to hand over to her opponents for conviction by a military tribunal any persons accused of having committed acts of violation of the laws and customs of war, even in cases where proceedings have already been instituted against these persons by German courts," on the ground that Article 9 of the German Criminal Code forbids the extradition of German subjects to foreign Governments. The Allied and Associated Powers, "if need be, would thus force upon the German Republic the alteration of an article of law which is the common property of most peoples and which, wherever it is in force, possesses the authority of a constitutionally authorized fundamental law. The refusal of this proposition was a self-evident demand of German honour."
Under the law of nations, it further argued, " only the State as bearer of the international obh'gation is responsible for acts in violation of the laws and customs of war. If satisfaction is to be given by the punishment of guilty individuals, the injured State itself may not convict; it can only demand the punish- ment of the State responsible for the guilty person." Germany had never refused and once more declared her readiness to see that violations of international law were punished with the full severity of the law; and that all accusations, from whichever party they came, would be examined impartially. Beyond this, she was prepared to leave the decision of the preliminary ques- tion, whether any act committed in the war was to be considered as an offence against the laws and customs of war, to an inter- national tribunal composed of neutrals before which ought to be brought violations of the laws and customs of war committed by subjects of all parties to the Treaty. Germany claimed the same share in the formation of this international tribunal as the Allied and Associated Powers; but she proposed that the powers of the international tribunal be restricted to the settling of questions of international law, punishment to be reserved for the national courts.
These proposals were not agreed to, and the only alteration the German representatives obtained was that the ordinary, not the military, punishments should be inflicted on the guilty.
Articles 22830 therefore read as follows :
" The German Government recognizes the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts of violation of the laws and customs of war. Such persons shall, if found guilty, be sentenced to punish- ments laid clown by law. This provision will apply notwithstanding any proceedings or prosecution before a tribunal in Germany or in the territory of her allies.
The German Government shall hand over to the Allied and Associated Powers, or to such one of them as shall so request, all persons accused of having committed an act of violation of the laws and customs of war, who are specified, either by name or by the rank, office, or employment which they held under the German authorities.
Persons guilty of criminal acts against the nationals of one of the Allied and Associated Powers will be brought before the military tribunals of that Power.
Persons guilty of criminal acts against the nationals of more than one of the Allied and Associated Powers will be brought before mili- tary tribunals composed of members of the military tribunals of the Powers concerned.
In every case the accused will be entitled to name his own counsel.
The German Government undertakes to furnish all documents and information of every kind, the production of which may be considered necessary to ensure the full knowledge of the incrimi- nating acts, the discovery of offenders and the just appreciation of responsibility."
Thus the Allied and Associated Powers endeavoured to intro-
