Alleged usage of chemical weapons in Russia by the British

[Sergey]

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

Indeed, let's invite the readers to express their opinions.

[Sergey]

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.

Mr.Thompson, I would like to clarify my points.

Judgments of Nuremberg trials of course mention many sources. But (among other reasons) they mention namely the Hague 1907 in respect to the Soviet union.

It means (from my point of view) that lawful internetional court (Nuremberg tribunal) recognized that the Hague 1907 conventions was in force for Soviet union during WW2.

As for the principle that after significant changes in the type of rule any country must make special declaration, to adhere to the previously signed treaties then it is not written principle.

So we have: the written lawfull judgment and the unwritten principle. I believe that the written judgment has bigger weight.

[Samuel]

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

Indeed, let's invite the readers to express their opinions.

It is obvious that no ambiguity was created.
There is a clear procedure to denounce the convention.
http://www.yale.edu/lawweb/avalon/lawof ... .htm#iart8
Article 8:
"In the event of one of the Contracting Powers wishing to denounce the present Convention, the denunciation shall be notified in writing to the Netherlands Government, which shall at once communicate a duly certified copy of the notification to all the other Powers, informing them of the date on which it was received.

The denunciation shall only have effect in regard to the notifying Power, and one year after the notification has reached the Netherlands Government."

Therefore Lenin's statement can't be considered as a denunciation of the treaty.

[David Thompson]

Samuel wrote:

It is obvious that no ambiguity was created.
There is a clear procedure to denounce the convention.
http://www.yale.edu/lawweb/avalon/lawof ... .htm#iart8
Article 8:
"In the event of one of the Contracting Powers wishing to denounce the present Convention, the denunciation shall be notified in writing to the Netherlands Government, which shall at once communicate a duly certified copy of the notification to all the other Powers, informing them of the date on which it was received.

The denunciation shall only have effect in regard to the notifying Power, and one year after the notification has reached the Netherlands Government."

Therefore Lenin's statement can't be considered as a denunciation of the treaty.

When I was in school, this fallacious form of reasoning was called "begging the question." The quoted language assumes the very point at issue -- that the USSR considered itself bound by the convention. This false assumption is refuted by the fact that the convention was later affirmed by the RFSR in 1955 and by the Ukraine SSR in 1962 -- acts that would have been unnecessary if the assumption were accurate.

http://en.wikipedia.org/wiki/Begging_the_question

[Sergey]

It is an interesting point Samuel. And note, that the text of the convention doesn't mention any situation when the convention would be invalid for any High contracting power automatically.

I'm aware about only two claims that the Hague 1907 convention was not in force for the Soviet union (Russian republic, RSFSR)

1. Nazi Germany made such a claim. But Nazi regime was criminal, unlawfull. So all its claims are unlawfull and should be ignored.

2. Finland (apparently incouraged by Germany) attempted to make similar claim. However, eventually Finland agreed to respect the Hague 1907 convention toward the Soviet union.

I'm unaware about any statement made by British government that the Hague 1907 convention was not in force for Russia, that HM armed forces would not respect the convention for this or that reason.

[David Thompson]

Sergey -- You wrote:

Judgments of Nuremberg trials of course mention many sources. But (among other reasons) they mention namely the Hague 1907 in respect to the Soviet union.

It means (from my point of view) that lawful internetional court (Nuremberg tribunal) recognized that the Hague 1907 conventions was in force for Soviet union during WW2.

As for the principle that after significant changes in the type of rule any country must make special declaration, to adhere to the previously signed treaties then it is not written principle.

So we have: the written lawfull judgment and the unwritten principle. I believe that the written judgment has bigger weight.

Both of these points are inaccurate. Here's what the IMT judgment actually says. Note that it does not say that "the Hague 1907 conventions was in force for Soviet union during WW2," but instead refers to Germany and the customs and usages of war. Note also that, in the IMT's judgment, unwritten customs and usages are just as binding as any treaty or convention:

But it is argued that the Pact does not expressly enact that such wars are crimes, or set up courts to try those who make such wars. To that extent the same is true with regard to the laws of war contained in the Hague Convention. The Hague Convention of 1907 prohibited resort to certain methods of waging war. These included the inhumane treatment of prisoners, the employment of poisoned weapons, the improper use of flags of truce, and similar matters. Many of these prohibitions had been enforced long before the date of the Convention; but since 1907 they have certainly been crimes, punishable as offences against the laws of war; yet the Hague Convention nowhere designates such practices as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders. For many years past, however, military tribunals have tried and punished individuals guilty of violating the rules of land warfare laid down by this Convention. In the opinion of the Tribunal, those who wage aggressive war are doing that which is equally illegal, and of much greater moment than a breach of one of the rules of the Hague Convention. In interpreting the words of the Pact, it must be remembered that international law is not the product of an international legislature, and that such international agreements as the Pact have to deal with general principles of law, and not with administrative matters of procedure. The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing.

http://www.yale.edu/lawweb/avalon/imt/proc/judlawch.htm

[Sergey]

Samuel wrote:

It is obvious that no ambiguity was created.
There is a clear procedure to denounce the convention.
http://www.yale.edu/lawweb/avalon/lawof ... .htm#iart8
Article 8:
"In the event of one of the Contracting Powers wishing to denounce the present Convention, the denunciation shall be notified in writing to the Netherlands Government, which shall at once communicate a duly certified copy of the notification to all the other Powers, informing them of the date on which it was received.

The denunciation shall only have effect in regard to the notifying Power, and one year after the notification has reached the Netherlands Government."

Therefore Lenin's statement can't be considered as a denunciation of the treaty.

When I was in school, this fallacious form of reasoning was called "begging the question." The quoted language assumes the very point at issue -- that the USSR considered itself bound by the convention. This false assumption is refuted by the fact that the convention was later affirmed by the RFSR in 1955 and by the Ukraine SSR in 1962 -- acts that would have been unnecessary if the assumption were accurate.

http://en.wikipedia.org/wiki/Begging_the_question

Mr.Thompson. Suppose a man married with a woman in 1910. He never divorced though changed his surname. In 1955 he confirmed the fact that he is married. Does it mean that in 1919 he was not married?

Previously I asked you

(3) When did it (the withdrawal from the convention) happen exactly and for what reason?

You answered

When the Czarist regime was replaced by a new state.

I confess, it is a good reason but it is not founded on international Law, rather on a common sense.

[phylo_roadking]

Samuel, the point is - throughout this thread - that the Bolsevik regime in 1919 not only had repudiated all international treaties except the ones they specifically and individually announced they would keep - the Hague Conventions were not among this category...and anyway in 1919 the Russia that remained a High Contracting Power was the Russia that Kolchak was head of government of, NOT the Bolsheviks. The automatic continuation of any treaty applications went with the legitimate government.

So the position that as of 1919 Bolshevik Russia was not protected by the Conventions is copperfastened from two different directions

[Samuel]

When I was in school, this fallacious form of reasoning was called "begging the question." The quoted language assumes the very point at issue -- that the USSR considered itself bound by the convention. This false assumption is refuted by the fact that the convention was later affirmed by the RFSR in 1955 and by the Ukraine SSR in 1962 -- acts that would have been unnecessary if the assumption were accurate.

http://en.wikipedia.org/wiki/Begging_the_question

Probably my point wasn't clear.
I was replying to you claim that Lenin's speech created an ambiguity.
Either was the Soviet government bound by the treaty in that case we can't considered Lenin speech a denunciation of the treaty.
Or the Soviet government wasn't bound by the treaty and then Lenin couldn't denounce it.
If you think that the Soviet government wasn't bound by the treaty, where is the ambiguity?

The convention was reafirmed by the RFSR and the Ukraine SSR not by the Soviet Union.

[David Thompson]

Sergey -- You asked:

Mr.Thompson. Suppose a man married with a woman in 1910. He never divorced though changed his surname. In 1955 he confirmed the fact that he is married. Does it mean that in 1919 he was not married?

Suppose a man married with a woman in 1910. In 1918 the man was murdered by a fellow who moved into his house. In 1955 the murderer married the widow. Does it mean that in 1919 the murderer was married?

[David Thompson]

Samuel -- You asked:

Probably my point wasn't clear.
I was replying to you claim that Lenin's speech created an ambiguity.
Either was the Soviet government bound by the treaty in that case we can't considered Lenin speech a denunciation of the treaty.
Or the Soviet government wasn't bound by the treaty and then Lenin couldn't denounce it.
If you think that the Soviet government wasn't bound by the treaty, where is the ambiguity?

The ambiguity is whether or not the new Soviet state affirmed Czarist treaties, such as the 1907 Hague IV convention.

[phylo_roadking]

V. I. Lenin THE TASKS OF THE RUSSIAN SOCIAL-DEMOCRATIC LABOUR PARTY IN THE RUSSIAN REVOLUTION from V. I. Lenin, Collected Works, 4th English Edition, Progress Publishers, Moscow, 1964

Written in March 1917, and about the Provisional Government...

The Guchkov-Milyukov landlord and capitalist government can give the people neither peace, bread, nor freedom. It is a government for continuing the predatory war. It has openly declared that it will abide by the tsar's international treaties, and these are all predatory treaties.

Which explains exactly what he means by

We shall not bind ourselves by treaties. We shall not allow ourselves to be entangled by treaties

...in November. ALL the Tsar's International Treaties are "predatory treaties", he was not referring to JUST the secret treaties.

[Sergey]

According to materials of Nuremberg trials

http://www.holocaust-history.org/imt-jurisdiction/

(3) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

There is no direct reference to the Hague 1907 (or any other) convention (only to laws or customs of war). So could we use the same approach? Could we speak about usage of chemical weapons by the British on Russian soil as about war crime without any link to the Hague 1907 convention?

[phylo_roadking]

No. Because it was at Nuremberg in 1945 that Customary Law was first given the SAME weight as International Law in process. This didn't apply in 1919...

...and led to Geneva in 1949 to ensure that International Law had supremacy over customary, once it became fully obvious that there was no internationally-accepted codification of customary law except in the forms of International Law embodied in the various Hague and Geneva Conventions.

Nuremberg was customary law being applied by main force, which is NOT an ideal situation; International Law had to be extended - in 1949 - to cover all the areas that customary law had had to be used to cover in 1945.

And ANYWAY - remember what was said above about the reciprocity of customary law. That means that the use of Gas Warfare was permitted by Customary law as ALL sides had used it 1914-18!

Another clear either/or situation - in which neither option makes it a crime in 1919.

[phylo_roadking]

(P.S. Sergey, it's not a great idea to reference Nuremberg and its process of law as a reference for anything, simply because of all the questions over the role that uncodified customary law played in events (let alone all the breeches in the norms of jurisprudence). Customary law is exactly that - custom - and has no internationally-agreed tariff of penalties. All levels of penalty up to and including Capital Punishment were applied at Nuremberg with no basis in internationally-agreed law - and the Hague and Geneva Conventions up until then had no penalties either.)

{and always remember to provide a link, so we can all check the context etc. of a quotation.}