China
was in the wrong in failing to protect non-combatant, private subjects
of even the nations upon whom she was declaring war. For such a crime
there would come most drastic retribution. So far as the Imperial
Government is concerned, she either forced such persons to become
belligerent in self-defence, or violated all feelings of humanity by
encompassing their death, and that, too, by barbaric methods. To be shot
down, as dies the soldier on the battle-field, may be passed calmly by;
but one's blood boils to think of delicate women, little children, and
strong men, beheaded, outraged, cut to pieces, their bodies cast to dogs
and
wolves.
The American missionaries, burned or slaughtered at Pao-ting-fu, had never given the slightest offence, and were from
homes of Christian culture and refinement.
- Gilbert Reid, The Ethics of the Last China War, 32 THE FORUM
446, 454 (1901)
Literature
concerned with the history of international criminal law omits a major
advancement in the field; the fin de siècle trial of four Chinese
officials in an international theatre for their participation in the
massacre by Boxers of Chinese and Western Christians in the city of
Paoting-Fu.
Before the matter was resolved the
murders exacerbated tensions between the Allies and the Qing
government, and would be acknowledged by the Great Powers as “crimes
against the laws of humanity.” The trial and execution of
the
guilty officials excited international attention, and forced a
diplomatic and public conversation on the limits and appropriateness of
international criminal punishment and retaliatory sentiment.
The
case offers a cogent illustration of the dilemma confronting the more
conscientious elements of the Allied command; how to honor the spirit of
the new Hague Conventions, which were unprecedented in the degree to
which they humanized war, while preserving national honor. Ultimately,
General Gaselee, commander of the Paoting-Fu expedition, managed to
craft a judicial forum for the trial which, while imperfect by modern
standards, fit squarely in the interstices between the old world of
empire and the
emerging world of universal international law
The
birth of international criminal law is typically traced to the post-war
prosecutions of Nazi and Japanese war criminals by the Allies,1 when in
fact the Great Powers frequently turned to internationalized criminal
or quasi-criminal forums, as well as the rhetoric of ‘humanity’ and
‘civilization,’ to project power, establish narratives, manage public
opinion, express dissatisfaction, and defend humanitarian values in the
century after the Napoleonic
wars.
2
That these stories have been relegated to a narrative hinterland belies
the important role each played in establishing an international criminal
law vocabulary and shaping subsequent expectations of accountability.
3
The purpose of this paper is to restore one such significant but
unexplored caesure—the trial of a number of Chinese officials, accused
of participating in Boxer atrocities, before an ‘International
Commission’ by the Great Powers in 1900. The Boxer Uprising was an
anti-Western and anti-Christian peasant insurgency mostly located in
Northeast China.
A series of Boxer attacks on Western missionaries, Christian Chinese converts,
and
foreign legations and diplomats in Peking in early 1900 prompted the
Great Powers (Austria, France, Germany, Italy, Russia, Great Britain,
the United States, and neophyte Japan) with interests in China to
dispatch an international relief force in the summer of that year.
During the early stages of the intervention it was reported that seventy
Christians had been gruesomely murdered in Paoting-Fu;
4
securing and punishing that city thereafter became a priority for the
Allies, who organized a punitive expedition after securing footholds in
the nearby cities of Tientsin and Peking. The operation could have taken
the form of other Allied expeditions, which were characterized by acts
of extreme violence to-ward Boxers (or unlucky civilians who came from
villages suspected of harbouring Boxers).
But the Paoting-Fu expedition was different. When the Allies reached the city in mid-October 1900, they
established an “International Commission” to inquire into the
cause of the massacres and apportion responsibility among guilty
parties
who fell into their hands. In what was widely hailed as “one of the
most satisfactory aspects of the campaign,”5 the French, German, Italian
and British commissioners gathered evidence for seven days and
ultimately recommended death by beheading for three Chinese officials,
removal from office for another, and an additional trial in Tientsin for
a fifth. The punishment was approved by the Allied Field Marshal, the
German General Alfred von Waldersee, and carried out on November 7,
1900.
The trial was the only one of its kind
held as a result of the intervention, as the punishment of other middle
and high-ranking Chinese officials
proceeded on the basis of
negotiations between the Qing government and the intervening powers.
Although the Commission has recently received some brief attention by a
few dedicated historians, it has so far escaped scrutiny
within the international criminal law community.
6
Accordingly, a number of questions about the trial have remained
unanswered. What actually happened at Paoting-Fu? Was it fair? Why did
this operation, unlike others, result in an international criminal
trial? What meaning did the trial have for the belligerents and the
communities they represented? What consequences did the trial have for
the development of international criminal law?
Drawing on previously unexplored material from state archives, published and unpublished missionary correspondence
and military memoirs, and contemporaneous press reports, this
paper addresses these questions in four parts. Part 2 of this article
first
sets the scene by briefly describing the state of the armed con-flict
in October 1900, then recounts the story of the Commission’s day-to-day
operation, culminating in the execution of three Chinese officials. Part
3 sets the trial in its legal, cultural and strategic
context,
positioning it as an event framed by, among other factors, the
concomitant coherence of international criminal law and a shift in
thinking about the role of collective punishment in war.
Part 4
highlights
how the relevant constituencies viewed the trials, and traces the
influence of this seminal experiment with individual accountability for
international crimes on later efforts to create an international
jurisdiction to try the Kaiser in the wake of the First World War.
Finally, Part 5 explores the judicial character and fairness of the
Commission.
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