Alleged usage of chemical weapons in Russia by the British

[JTG]

"]David, you abuse your moderating position to have him all to yourself!!!

You "delete-blocked" me.

Penn44"

Since we haven't heard a dicky-bird about the alleged incident in yonks, David, isn't there a better place for the whole legalist discusion to be moved to?


John Germain

[Sergey]

Sergey -- You asked:

So as I understand you believe that after serious changes in the type of rule any country automatically withdraws from all international agreements and a new government should make special statement, adhere to the signed treaties.

Yes.

Is it internationally recognised practice (maybe even codified) or your personal private opinion?

In 1907, I believe it was a generally recognized practice. It also has the feature of common sense. When the power to make treaties is transferred by revolution from a autocratic monarch to the people of the country he used to rule, there is every reason to assume a treaty signed by the monarch would not be binding on the new sovereigns without their approval. Contrast this theory of national sovereignty:

Chapter I. The Essence of the Supreme Autocratic Power

4. The All-Russian Emperor possesses the supreme autocratic power. Not only fear and conscience, but God himself, commands obedience to his authority.

5. The person of the Sovereign Emperor is sacred and inviolable.

6. The same supreme autocratic power belongs to the Sovereign Empress, should the order of succession to the throne pass to a female line; her husband, however, is not considered a sovereign; except for the title, he enjoys the same honours and privileges reserved for the spouses of all other sovereigns.

7. The sovereign emperor exercises power in conjunction with the State Council and the State Duma.

8. The sovereign emperor possesses the initiative in all legislative matters. The Fundamental Laws may be subject to revision in the State Council and State Duma only on His initiative. The sovereign emperor ratifies the laws. No law can come into force without his approval. . . .

9. The Sovereign Emperor approves laws; and without his approval no legislative measure can become law.

10. The Sovereign Emperor possesses the administrative power in its totality throughout the entire Russian state. On the highest level of administration his authority is direct; on subordinate levels of administration, in conformity with the law, he determines the degree of authority of subordinate branches and officials who act in his name and in accordance with his orders.

11. As supreme administrator, the Sovereign Emperor, in conformity with the existing laws, issues decrees for the organization and functioning of diverse branches of state administration as well as directives essential for the execution of the laws.

12. The sovereign emperor takes charge of all the external relations of the Russian State. He determines the direction of Russia's foreign policy . . . .

Russian fundamental laws of 1906
http://www.angelfire.com/pa/ImperialRus ... a/rfl.html

with the provisions of the 1918 Constitution of the R.S.F.S.R.:

CHAPTER SIX
THE ALL-RUSSIAN CONGRESS OF SOVIETS
OF WORKERS', PEASANTS', COSSACKS', AND RED ARMY DEPUTIES

24. The All-Russian Congress of Soviets is the supreme power of the Russian Socialist Federated Soviet Republic.

25. The All-Russian Congress of Soviets is composed of representatives of urban soviets (one delegate for 25,000 voters), and of representatives of the provincial (gubernia) congresses of soviets (one delegate for 125,000 inhabitants).

* * * * *

CHAPTER NINE
AFFAIRS IN THE JURISDICTION OF THE ALL-RUSSIAN CONGRESS
AND THE ALL-RUSSIAN CENTRAL EXECUTIVE COMMITTEE

49. The All-Russian Congress and the All-Russian Central Executive Committee deal with the questions of state, such as:
(a) Ratification and amendment of the Constitution of the Russian Socialist Federated Soviet Republic;
(b) General direction of the entire interior and foreign policy of the Russian Socialist Federated Soviet Republic;
(c) Establishing and changing boundaries, also ceding territory belonging to the Russian Socialist Federated Soviet Republic;
(d) Establishing boundaries for regional soviet unions belonging to the Russian Socialist Federated Soviet Republic, also settling disputes among them;
(e) Admission of new members to the Russian Socialist Federated Soviet Republic, and recognition of the secession of any parts of it;
(f) The general administrative division of the territory of the Russian Socialist Federated Soviet Republic and the approval of regional unions;
(g) Establishing and changing weights, measures, and money denominations in the Russian Socialist Federated Soviet Republic;
(h) Foreign relations, declaration of war, and ratification of peace treaties;
(i) Making loans, signing commercial treaties and financial agreements;
(j) Working out a basis and a general plan for the national economy and for its various branches in the Russian Socialist Federated Soviet Republic;
(k) Approval of the budget of the Russian Socialist Federated Soviet Republic;
(l) Levying taxes and establishing the duties of citizens to the state;
(m) Establishing the bases for the organization of armed forces;
(n) State legislation, judicial organization and procedure, civil and criminal legislation, etc.;
(o) Appointment and dismissal of the individual People's Commissars or the entire council, also approval of the president of the Council of People's Commissars;
(p) Granting and cancelling Russian citizenship and fixing rights of foreigners;
(q) The right to declare individual and general amnesty.

50. Besides the above-mentioned questions, the All-Russian Congress and the All-Russian Central Executive Committee have charge of all other affairs which, according to their decision, require their attention.

51. The following questions are solely under the jurisdiction of the All-Russian Congress:
(a) Ratification and amendment of the fundamental principles of the Soviet Constitution;
(b) Ratification of peace treaties.

52. The decision of questions indicated in paragraphs (c) and (h) of Section
49 may be made by the All-Russian Central Executive Committee only in cases it is impossible to convoke the Congress.

http://www.departments.bucknell.edu/rus ... tml#chap06

You also wrote:

George Ginsburgs , Moscow's Road to Nuremberg: The Soviet Background to the Trial, pp. 26-28

http://books.google.com/books?.....g#PPA27,M1

Soviet lawyers and politicians constantly emphasized, both before and after World War II, that the Hague Conventions of 1899 and 1907 had merely served to codify some of the already universally recognized laws and customs of war and that, as a consequence, both the traditional rules of warfare and the conventionalized regulations continued to be equally binding on all nations, irrespective of whether they ever signed or deposited an instrument of accession to the documents themselves.

Does it mean that Soviet government withdrew from the Hague conventions? No of course.

You seem to have have missed the passage on p. 27, which begins:

In effect, at the time of the German invasion of the USSR the Soviet government had not acceded to the Hague conventions of 1899 and 1907 on the rules of warfare.

and you also don't take into account the fact that poison gas had not been used in combat when the Hague IV convention went into effect, and that in WWI all sides used it.

I assure you mr.Thompson that I take into account all these facts. Not all participants in WW1 were high contracting power in the Hague 1907 convention. So, at least from formal point of view, the usage of poisonous gases during WW1 was not unlawful.

As for your other arguments then they are worth to be regarded with propper attention. I would like to comment them (or/and agree with them) later (after collecting of additional information).

My sincere apologies but tomorrow I will fly to Israel with business trip (btw, I hope to vist Yad-Vashem museum here). So my replay could be postponed.

Regards!

PS. Such a pity that you deleted (no doubt wonderful) message sent by our friend Penn.

[David Thompson]

Concluding Speech of V. I. Lenin, Following The Discussion On The Report On Peace October 26 (November 8), 1917 [Pravda No. 171, November 10 (October 28), 1917], at the Second All-Russia Congress of Soviets of Workers' and Soldiers' Deputies
http://www.marxists.org/archive/lenin/w ... ct/25b.htm

We shall not bind ourselves by treaties. We shall not allow ourselves to be entangled by treaties. We reject all clauses on plunder and violence, but we shall welcome all clauses containing provisions for good-neighbourly relations and all economic agreements; we cannot reject these.

[phylo_roadking]

(David, no notice was taken of that when I posted it.....)

[David Thompson]

phylo -- I noticed it in your post at http://forum.axishistory.com/viewtopic. ... 06#1123806 ; and I thought it was worth repeating, with a hyperlink for our readers interested in learning more about this subject. Lenin's piece of bombast suggests that the bolshevik government would pick and choose which treaties it would respect, leaving it up to the USSR to officially reaffirm or ratify those treaties it considered binding.

[Sergey]

Concluding Speech of V. I. Lenin, Following The Discussion On The Report On Peace October 26 (November 8), 1917 [Pravda No. 171, November 10 (October 28), 1917], at the Second All-Russia Congress of Soviets of Workers' and Soldiers' Deputies
http://www.marxists.org/archive/lenin/w ... ct/25b.htm

We shall not bind ourselves by treaties. We shall not allow ourselves to be entangled by treaties. We reject all clauses on plunder and violence, but we shall welcome all clauses containing provisions for good-neighbourly relations and all economic agreements; we cannot reject these.

Dear mr.Thompson, let's expand your quote

There is still another point, comrades, to which you must pay the most careful attention. The secret treaties must be published. The clauses dealing with annexations and indemnities must be annulled. There are various clauses, comrades—the predatory governments, you know, not only made agreements between themselves on plunder, but among them they also included economic agreements and various other clauses on good-neighbourly relations.

We shall not bind ourselves by treaties. We shall not allow ourselves to be entangled by treaties. We reject all clauses on plunder and violence, but we shall welcome all clauses containing provisions for good-neighbourly relations and all economic agreements; we cannot reject these.

Mr. Lenin doesn't use expression like 'ALL INTERNATIONAL TREATIES SIGNED BY PREVIOUS GOVERNMENTS'. It is clear from the context that he means namely the secret treaties.

[David Thompson]

Sergey -- That's not the way I read the passage. Lenin starts by talking about the secret treaties entered into between the provisional government and other countries, and publicizing them, and then moves on to the topic of treaties in general and Soviet policy regarding them. If he was only talking about the secret treaties he would have continued using the term. Lenin's careless or deliberate ambiguity throws the whole question of previous Czarist and provisional government treaties up into the air. This is made even more obvious because the remainder of Lenin's speech deals with the necessity for popular ratification of agreements.

Here is the text of the speech in full, so that the readers can see the context for themselves:

Concluding Speech Following The Discussion On The Report On Peace October 26 (November 8)

I shall not touch on the general character of the declaration. The government which your Congress sets up may amend unessential points.

I shall vigorously oppose lending our demand for peace the form of an ultimatum. An ultimatum may prove fatal to our whole cause. We cannot demand that, since some insignificant departure from our demands on the part of the imperialist governments would give them the opportunity of saying that it was impossible to enter into negotiations for peace because of our irreconcilability.

We shall send out our appeal everywhere, it will be made known to everybody. It will be impossible to conceal the terms proposed by our workers' and peasants' government.

It will be impossible to hush up our workers' and peasants' revolution, which has overthrown the government of bankers and landowners.

The governments may not reply to an ultimatum; they will have to reply to the text as we formulate it. Let every one know what their governments have in mind. We do not want any secrets. We want a government to be always under the supervision of the public opinion of its country.

What will the peasant of some remote province say if, owing to our insistence on ultimatums, he will not know what another government wants? He will say: Comrades, why did you rule out the possibility of any peace terms being proposed? I would have discussed them, I would have examined them, and would then have instructed my representatives in the Constituent Assembly how to act. I am prepared to fight by revolutionary methods for just terms if the governments do not agree, but there might be such terms for some countries that I would be prepared to recommend their governments to go on fighting by themselves. The full realisation of our ideas depends solely on the overthrow of the entire capitalist system. This is what the peasant might say to us, and he would accuse us of being excessively uncompromising over trifles, when for us the main thing is to expose all the vileness, all the baseness of the bourgeoisie and of its crowned and uncrowned hangmen at the head of the government.

We should not and must not give the governments an opportunity of taking refuge behind our uncompromising attitude and of concealing from the peoples the reason why they are being sent to the shambles. This is a tiny drop, but we should not and must not reject this drop, which will wear away the stone of bourgeois conquest. An ultimatum would make the position of our opponents easier. But we shall make all the terms known to the people. We shall confront all the governments with our terms, and let them give an answer to their people. We shall submit all peace proposals to the Constituent Assembly for decision.

There is still another point, comrades, to which you must pay the most careful attention. The secret treaties must be published. The clauses dealing with annexations and indemnities must be annulled. There are various clauses, comrades—the predatory governments, you know, not only made agreements between themselves on plunder, but among them they also included economic agreements and various other clauses on good-neighbourly relations.

We shall not bind ourselves by treaties. We shall not allow ourselves to be entangled by treaties. We reject all clauses on plunder and violence, but we shall welcome all clauses containing provisions for good-neighbourly relations and all economic agreements; we cannot reject these. We propose an armistice for three months; we choose a lengthy period because the peoples are exhausted, the peoples long for a respite from this bloody shambles that has lasted over three years. We must realise that the peoples should be given an opportunity to discuss the peace terms and to express their will with parliament participating, and this takes time. We demand a lengthy armistice, so that the soldiers in the trenches may enjoy a respite from this nightmare of constant slaughter; but we shall not reject proposals for a shorter armistice; we shall examine them, and it is incumbent upon us to accept them, even if we are offered an armistice of a month or a month and a half. Nor must our proposal for an armistice have the form of an ultimatum, for we shall not give our enemies an opportunity of concealing the whole truth from the peoples, using our irreconcilability as a pretext. It must not be in the form of an ultimatum, for a government is criminal that does not desire an armistice. If we do not put our proposal for an armistice in the form of an ultimatum, we shall thereby show the peoples that the governments are criminal, and the peoples will not stand on ceremony with such criminals. The objection is raised that by not resorting to an ultimatum we are displaying weakness, but it is time to cast aside all bourgeois cant when speaking of the strength of the people. According to the bourgeois conception, there is strength when the people go blindly to the slaughter in obedience to the imperialist governments. The bourgeoisie admit a state to be strong only when it can, by the power of the government apparatus, hurl the people wherever the bourgeois rulers want them hurled. Our idea of strength is different. Our idea is that a state is strong when the people are politically conscious. It is strong when the people know everything, can form an opinion of everything and do everything consciously. We need not fear to tell the truth about fatigue, for what state today is not tired, what nation does not talk about it openly? Take Italy, where, owing to this tiredness, there was a prolonged revolutionary movement demanding the termination of the slaughter. Are there not mass demonstrations of workers in Germany that put forward a demand for the termination of the war? Was it not fatigue that provoked the mutiny in the German navy that was so ruthlessly suppressed by that hangman, Wilhelm, and his hirelings? If such things are possible in so disciplined a country as Germany, where they are beginning to talk about fatigue and about putting an end to the war, we need not fear to say the same openly, because it is the truth, equally true both of our country and of all the belligerent and even non-belligerent countries.

http://www.marxists.org/archive/lenin/w ... ct/25b.htm

[phylo_roadking]

David, this in turn dovetails with the positions in Soviet law taken by people like Korovin, who on the back of this wrote their treatises about International Law and how the Bolsheviks viewed it for a Soviet and international legal and literary audience. This is Lenin saying it for the Party faithful on a platform.

Sergey, read exactly what David posted....

We shall not bind ourselves by treaties. We shall not allow ourselves to be entangled by treaties. We reject all clauses on plunder and violence, but we shall welcome all clauses containing provisions for good-neighbourly relations and all economic agreements; we cannot reject these. We propose an armistice for three months; we choose a lengthy period because the peoples are exhausted, the peoples long for a respite from this bloody shambles that has lasted over three years. We must realise that the peoples should be given an opportunity to discuss the peace terms and to express their will with parliament participating,...

He is not talking about the secret Tsarist treaties. THAT was clearly the subject of the PREVIOUS paragraph, where he has already said that THEY would be published and annulled. Lenin isn't repeating himself, he has changed subject in this paragraph.

[Sergey]

Sergey -- That's not the way I read the passage. Lenin starts by talking about the secret treaties entered into between the provisional government and other countries, and publicizing them, and then moves on to the topic of treaties in general and Soviet policy regarding them. If he was only talking about the secret treaties he would have continued using the term. Lenin's careless or deliberate ambiguity throws the whole question of previous Czarist and provisional government treaties up into the air. This is made even more obvious because the remainder of Lenin's speech deals with the necessity for popular ratification of agreements.

No, mr.Thompson, mr.Lenin was not careless. Simply he spoke in Russian.
Russian language is voided articles. So the right translation would be

The secret treaties must be published.
...
We shall not bind ourselves by the treaties.

As there are no articles in Russian language then a speaker or a writer who wishes to use a word in wider or narrower meaning must specify it directly. The second, 3d and further usages of a word have the same meaning as the very first one.

So as mr.Lenin didn't say about 'all treaties signed by previous governments' (didn't specify another, wider meaning for a word 'treaties') then a word 'treaties' has meaning 'the secret treaties'.

Anyway the speech was not a governmental statement or a passed law.

[David Thompson]

Anyway the speech was not a governmental statement or a passed law.

I leave it to the readers to decide what Lenin meant, whether he was speaking as a private citizen or as a representative of the Soviet government (Chairman of the Council of People's Commissars), and whether the ambiguity he created should have been clarified by the RFSR prior to 1955, and by the Ukrainian SSR prior to 1962. For background, see:

Collected Works of V. I. Lenin, 1917
http://www.marxists.org/archive/lenin/w ... e/1917.htm

[Sergey]

Sergey -- You asked:

So as I understand you believe that after serious changes in the type of rule any country automatically withdraws from all international agreements and a new government should make special statement, adhere to the signed treaties.

Yes.

Is it internationally recognised practice (maybe even codified) or your personal private opinion?

In 1907, I believe it was a generally recognized practice. It also has the feature of common sense. When the power to make treaties is transferred by revolution from a autocratic monarch to the people of the country he used to rule, there is every reason to assume a treaty signed by the monarch would not be binding on the new sovereigns without their approval.

Mr.Thompson, are you right or wrong here? I believe that you are rather right. There are only two points that are obstacles to express absolute support to your vision.

1) As I understand this practice is not formally codified.

2) According the Judgement of the Nuremberg trial Germany violated the Hague 1907 convention toward the Soviet union. So the convention was in force for the Soviet union in 1941.

http://www.yale.edu/lawweb/avalon/imt/p ... #prisoners

In the main these provisions are merely declaratory of the existing laws of war as expressed by the Hague Convention, Article 46, which stated:

"Family honour and rights, the lives of persons and private property, as well as religious convictions and practices must be respected."
The territories occupied by Germany were administered in violation of the laws of war. The evidence is quite overwhelming of a systematic rule of violence, brutality and terror. On the 7th December, 1941, Hitler issued the directive since known as the "Nacht und Nebel Erlass" (Night and Fog Decree), under which persons who committed offences against the Reich or the German forces in occupied territories, except where the death sentence was certain, were to be taken secretly to Germany and handed over to the SIPO and SD for trial or punishment in Germany.
...
The practice of keeping hostages to prevent and to punish any form of civil disorder was resorted to by the Germans; an order issued by the defendant Keitel on the 16th September, 1941, spoke in terms of fifty or a hundred lives from the occupied areas of the Soviet Union for one German life taken.

[Penn44]

Eleven pages and still no war crime. What is the record?

Penn44

.

[David Thompson]

Sergey -- You wrote:

According the Judgement of the Nuremberg trial Germany violated the Hague 1907 convention toward the Soviet union. So the convention was in force for the Soviet union in 1941.

See http://forum.axishistory.com/viewtopic. ... 64#1123364

The Hague II convention of 1899 ( http://www.yale.edu/lawweb/avalon/lawofwar/hague02.htm ) and the Hague IV convention of 1907 ( http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm ) were not the only source of war crimes law during WWII. The customs and usages of land warfare are older than the Hague conventions, and more binding.

The Hague conventions of 1899 and 1907 suffered from a defect -- the clausula si omnes portion of those agreements. By contrast, the customs and usages of land warfare do not have an escape clause, and do not require adherence to or ratification of the Hague pacts to take effect.

The Hague conventions recognize the customs and usages of land warfare, and seek to memorialize them. In the Hague II convention of 1899, there is this language:

Considering that, while seeking means to preserve peace and prevent armed conflicts among nations, it is likewise necessary to have regard to cases where an appeal to arms may be caused by events which their solicitude could not avert;

Animated by the desire to serve, even in this extreme hypothesis, the interest of humanity and the ever increasing requirements of civilization;

Thinking it important, with this object, to revise the laws and general customs of war, either with the view of defining them more precisely, or of laying down certain limits for the purpose of modifying their severity as far as possible;

Inspired by these views which are enjoined at the present day, as they were twenty-five years ago at the time of the Brussels Conference in 1874, by a wise and generous foresight;

Have, in this spirit, adopted a great number of provisions, the object of which is to define and govern the usages of war on land.

The Hague IV convention of 1907 starts out with this nearly identical language:

Seeing that, while seeking means to preserve peace and prevent armed conflicts between nations, it is likewise necessary to bear in mind the case where the appeal to arms has been brought about by events which their care was unable to avert;

Animated by the desire to serve, even in this extreme case, the interests of humanity and the ever progressive needs of civilization;

Thinking it important, with this object, to revise the general laws and customs of war, either with a view to defining them with greater precision or to confining them within such limits as would mitigate their severity as far as possible;

Have deemed it necessary to complete and explain in certain particulars the work of the First Peace Conference, which, following on the Brussels Conference of 1874, and inspired by the ideas dictated by a wise and generous forethought, adopted provisions intended to define and govern the usages of war on land.

The only parts of the Hague convention covered by the clausula si omnes or escape clause are the revisions to the pre-existing customs and usages of land warfare – those customs and usages pre-dated the Hague conferences and were unaffected by those agreements.

The prohibition against the use of poison gas was not a pre-existing custom and usage of land warfare in 1907, and in WWI all sides used it.

You also wrote:

Mr.Thompson, are you right or wrong here? I believe that you are rather right. There are only two points that are obstacles to express absolute support to your vision.

1) As I understand this practice is not formally codified.

Customs and usages, whether national or international; always predate codification. It is only when there are recurring questions about the exact nature of the customs and usages, or when those questions involve some important issue (large sums of money; life and death), that codification is necessary.

[phylo_roadking]

In the main these provisions are merely declaratory of the existing laws of war as expressed by the Hague Convention, Article 46, which stated...

....in other words they were charged under the customary law underpinning the Hague Convention and not the Hague Convention itself. That's covered in one of the links already posted.

[Sergey]

Eleven pages and still no war crime. What is the record?

Penn44

.

Wonderful sir, we are still discussing the issue.

Sincerely yours, Sergey.