« PreviousContinue »
which attached to it on the grounds hereinafter referred to, even though the result should be an acquittal on the legal plea.
The defence relied solely on the plea that in torpedoing and sinking the ship Commander Neumann was acting upon the direct order of his superiors. The order was produced in court and could not be challenged. The Oberreichsanwalt did not ask for a conviction and the court held that Lieut.Commander Neumann could not be held criminally responsible for the act as he had in no way exceeded the orders which he had received.
In the course of the judgment the court laid it down that the punishment of a subordinate, who has acted in conformity with his orders, can only arise (1) if he has exceeded the order given to him, (2) he is aware that his superior's orders directed action, which involved a civil or military crime or misdemeanor. The court did not consider that either of these elements was present in this case and the accused was accordingly acquitted.
It is important in this case to record that the decision of the court was based solely on the question of obedience to superior orders. The actual legality of the orders was not discussed in the judgment of the court, which only considered the question whether the accused was aware that they were illegal. In his address to the court the Oberreichsanwalt expressly stated that there was no evidence that the Dover Castle was being used in any other way than as a hospital ship, and that he was personally persuaded, that she did not carry troops or ammunition or anything that it was not proper for a hospital ship to carry. He invited the court to deal with the case on this assumption. Whether the orders were themselves just or not, he added, did not much matter so far as the accused was concerned, provided he did not know them to be unjust.
This was the ratio decidendi of the court, and there can be little doubt that by German law the decision was correct.
The proceedings against Commander Neumann completed the trials of the four persons named by the British Government who were amenable to justice, but after the conclusion of the last trial, proceedings were taken by the German Government, at their own instance, against two officersLieutenants Dithmar and Boldt--who were serving under the command of Commander Patzig in the submarine U. 86, by which the hospital ship Llandovery Castle was sunk.
HOSPITAL SHIP “LLANDOVERY CASTLE"
COMMANDER HELMUT PATZIG
LIEUTENANTS DITHMAR AND BOLDT As has been already stated, Patzig is said to be out of the jurisdiction of the German Government, and his whereabouts are not known. In the course of the enquiry into the charges made against him by the British Government, the German authorities examined a number of witnesses and amongst them
In addition, arising out of the case of the Llandovery Castle, but not named by the British Government:
In all of these cases the sentences were to imprisonment in a prison and not to confinement in a fortress. Official confirmation of the fact that the sentences are being served has been received.
A satisfactory feature of these trials has been the admirable way in which the British witnesses have given their evidence before the Supreme Court at Leipzig. They consistently displayed a remarkable degree of intelligence and impartiality, which appeared greatly to impress the President and other members of the court.
Translations of the judgments are appended."
STRAND, W.C. 2. 8th August, 1921.
EXPLANATORY MEMORANDUM RELATING TO THE WIESBADEN AGREEMENT OF OCTOBER 6, 1921, BETWEEN FRANCE AND GERMANY
October 26, 1921 In order to understand the arrangements proposed by the Wiesbaden agreement, it is necessary to bear in mind certain provisions of the Treaty of Versailles, the application of which is affected by it.
The treaty itself provides in the reparation chapter, Part VIII, and in some of its annexes, for the partial liquidation of Germany's reparation indebted5 Printed, infra, p. 674.
1 British Parliamentary Paper, 1921, (Cmd. 1547).
ness by deliveries in kind. The important passages in this connection are paragraph 19 of Annex II and Annex IV, which together make extensive provision for the delivery, through the Reparation Commission, to the Allied and Associated Powers of machinery, equipment, tools, reconstruction material and, in general, all such material and labor as is necessary to enable any Allied Power to proceed with the restoration or development of its industrial or economic life.
Germany's obligation being stated in terms of gold and not in terms of commodities, provision has necessarily been made in all cases for crediting Germany, from time to time, with the fair value, as assessed by the Reparation Commission, of such deliveries. Moreover, since the proportions received by the respective Powers in kind need not necessarily correspond exactly with their respective shares in Germany's reparation payments, as determined by inter-Allied agreement, provision is further necessarily made in the treaty to render each Power accountable not only to Germany, but to the Reparation Commission, for the value of these deliveries. Thus, on the one hand, the treaty stipulates as between the Allies and Germany that the value of services under the annexes shall be credited towards the liquidation of Germany's general obligation, and the schedule of payments assigns the value of annex deliveries to the service of the bonds handed over by Germany as security for her debt. On the other hand, the treaty provides that for the purpose of equitable distribution as between the Allies, the value of Annex deliveries shall be reckoned in the same manner as cash payments effected in the year, and the schedule of payments stipulates that the value of the deliveries received by each Power shall, within one month of the date of delivery, be paid over to the Reparation Commission, either in cash or in current coupons.
Further, the treaty imposes upon the Reparation Commission not only the duty of fixing prices, but also of determining the capacity of Germany to deliver goods demanded by any of the Allies, and, by implication, of deciding between the competing demands which are made upon that capacity by the Allies themselves.
The Wiesbaden agreement provides for the delivery by a German company? to French sinistrés of "all plant and materials compatible with the productive capacity of Germany, her supply of raw materials and her domestic requirements,” that is to say, of the articles and materials which can be demanded under Annex IV and paragraph 19 of Annex II, which are, by the terms of the agreement, in so far as France is concerned virtually suspended, the obligations of Germany to deliver to France under the other annexes remaining unaffected.
2 The arrangement under which a German private company is to be created to deal directly with the orders without the intervention of the French and German Governments is intended to obviate the delays which experience has shown to be inseparable from the employment of the present machinery. It does not appear to have any important bearing on the general financial situation, since the deliveries will clearly have to be financed by the German Government and will ultimately be paid for by means of a reparation credit in account with the German Government.
Any question as to the capacity of Germany to satisfy the requirement of France, and all questions of price, are to be settled by a commission of three members, one French and one German, and a third selected by common agreement or nominated by the Swiss President.
The aggregate value of the deliveries to be made under the agreement, and of the deliveries to be made under Annexes III, V and VI (hereafter, for the sake of brevity, called the “Annex deliveries”) in the period expiring on the 1st May 1926 is fixed at a maximum of 7 milliard gold marks.
In regard to the Annex deliveries the agreement in no way modifies the treaty provisions under which Germany is credited and France debited forthwith with the value, but special provisions, which are financially the essential part of the agreement, are made for bringing to reparation account the value of the Agreement deliveries. These special provisions are designed to secure that Germany shall only be credited on reparation account at the time of delivery with a certain proportion of them, and that deliveries not thus accounted for, which may be called "excess deliveries,” shall be liquidated over a period of years beginning at the earliest on 1st May 1926. The provisions themselves are somewhat intricate, comprising as they do, a series of interacting limitations, and they require some elucidation.
(1) In no case is credit to be given to Germany in any one year for Annex and Agreement deliveries together, to an amount exceeding one milliard gold marks.
(2) In no case is credit to be given to Germany in any one year for more than 45 per cent. of the value of the Agreement deliveries or for more than 35 per cent. if the value of the Agreement deliveries exceeds
one milliard gold marks. The effect of the above is to prescribe that 55 per cent. (or, if the agreement operates successfully, 65 per cent.) of the value of the Agreement deliveries as a minimum will be the object of deferred payment by instalments. If the Agreement deliveries reached really high figures, the operation of the milliard limitation would make the carry forward much more than 65 per cent.
The excess deliveries are to be liquidated with interest at 5 per cent. per annum in ten equal annual instalments as from 1st May 1926, subject to certain conditions:
(1) France shall in no case be debited in one year for Agreement deliveries with an amount which, when added to the value of her Annex deliveries in that year, would make her responsible for more than her share (52 per cent.) of the total reparation payments made by Germany
(2) Agreement deliveries continue after 1st May 1926, with the same provisions for deferred payment. If in any year between May 1926 and May 1936 the amount (not exceeding 35 or 45 per cent.) of the value of
in that year.
that year's Agreement deliveries to be credited to Germany, together with the annual instalment to repay the debt incurred in respect of the period ending 1st May 1926, exceeds one milliard, the excess is to be carried forward from year to year until a year is reached in which no such excess is created by the payment. But in no case shall the amount credited, even if it is less than one milliard gold marks, exceed the limit laid down by the preceding condition.
(3) Any balance with which Germany has not been credited on 1st May 1936 is to be credited to her with compound interest at 5 per cent. in four half-yearly payments on 30th June and 31st December 1936 and 30th June and 31st December 1937. But, again, these half-yearly payments shall not be made if the effect of making them would be to exceed the limit laid down in condition (1) above.
(4) Agreement deliveries continue indefinitely after 1st May 1936, with power, however, to Germany to arrest them whenever the execution of them would result in France owing more than 52 per cent. of Germany's annual reparation payment in respect of Annex deliveries, deferred payments already matured, and the 35 or 45 per cent. of current deliveries.
From the above it is to be noted that, while there is a limitation for the first five years of the amount of Agreement deliveries which can be demanded, there is,
(1) No point at which the right of France to demand these special deliveries automatically terminates;
(2) No final limitation upon the value of the deliveries which can be demanded by France during the lifetime of the agreement;
(3) No definitely prescribed period within which France's debt to Germany and to the other partners in reparation shall be liquidated.
The financial effect of the agreement is perhaps best shown by taking hypothetical examples.
Let it be assumed that Germany's annual reparation obligation under the schedule of payments amounts to 3,300,000,000 gold marks, of which France, under existing inter-Allied agreements, is entitled to receive 52 per cent., or, 1,700,000,000 gold marks. Let it be assumed again that France receives annual Annex deliveries to the value of 450,000,000 gold marks. The Annex and Agreement deliveries together in the first five years are not to exceed 7,000,000,000 gold marks. Five years' Annex deliveries, on the above hypothesis, amount to 2,250,000,000 gold marks, leaving a maximum value of 4,750,000,000 gold marks for the Agreement deliveries over the same period. Let it be assumed that the Agreement deliveries are spread equally over the five-year period, with the result that their annual value amounts to 950,000,000 gold marks. In the first year, 1921–22, it is specially provided that not more than 35 per cent. shall be credited to Germany, or 332,500,000 gold marks, leaving payment to be deferred of 617,500,000 gold marks. In the second and subsequent years, up to May 1926, 45 per cent. of the 950,000,000 gold marks, or 427,500,000 gold marks, would be credited, leaving