ACCOUNTABILITY FOR “CRIMES AGAINST THE LAWS OF HUMANITY” IN BOXER CHINA: AN EXPERIMENT WITH INTERNATIONAL JUSTICE AT PAOTING-FU BENJAMIN E. BROCKMAN-HAWE* * Benjamin E. Brockman-Hawe received his J.D. from Boston University (2008), where he graduated with honors in the concentration of international law, and his L.L.M. from Columbia University (2016). This paper was originally pre- pared for presentation at the European Society of International Law’s Tenth An- niversary Conference at Vienna, September 2014. I would like to thank Lilie Schoenack and Alice Lam for their encouragement, support and assistance in seeing this work brought to completion. I am also grateful to have been assisted by Ruiken Sun and Karl-Heinz Mertins, whose gen- erous, careful and skillful translations of Chinese and German sources was in- strumental to the completion of this project. I was also fortunate to have benefited from the insights, guidance and assistance of R. John Pritchard and Jon Bush, two of international law’s greats! Throughout this paper I refer to places and people using the spellings em- ployed by those who lived through the Boxer Rebellion in lieu of the preferred contemporary spellings. Thus, for example, the cities today identified as Baoding and Beijing I identify as Paoting-Fu and Peking. Where there was a great deal of variation for the spelling of names, I have elected to use a spelling most common to those who wrote of the events at issue (i.e., Paoting-Fu for Pao-Ting-Fu, Pao- tingfu, Pautingfu, etc.), except where the name is part of a quotation, in which case the original spelling has been preserved. 627 Published by Penn Law: Legal Scholarship Repository, 2017 628 U. Pa. J. Int’l L. [Vol. 38:2 ABSTRACT China was in the wrong in failing to protect non-combatant, pri- vate 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 [I]mperial Government is concerned, she either forced such persons to become belligerent in self-defence, or vio- lated all feelings of humanity by encompassing their death, and that, too, by barbaric methods. To be shot down, as dies the sol- dier 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 participa- tion in the massacre by Boxers of Chinese and Western Christians in the city of Paoting-Fu. Before the matter was resolved the mur- ders exacerbated tensions between the Allies and the Qing gov- ernment, 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 dip- lomatic 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 un- precedented in the degree to which they humanized war, while preserving national honor. Ultimately, General Gaselee, com- mander 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. https://scholarship.law.upenn.edu/jil/vol38/iss2/6 2017] AN EXPERIMENT WITH INTERNATIONAL JUSTICE 629 TABLE OF CONTENTS 1. Introduction ................................................................................630 2. Justice at Paoting-Fu ..................................................................632 3. The International Commission and Essential Contexts ......654 3.1. The Culturo-Legal Context ....................................................654 3.2. Prudential Considerations .....................................................667 4. The Immediate Response to Paoting-Fu Trial.......................672 5. Intellectual Ripples – The International Commission’s Legacy ................................................................685 6. The Judicial Character of the Commission and Fairness of the Trial ............................................................690 7. Final Thoughts ...........................................................................697 8. ANNEX 1 (Session Records) ....................................................700 9. ANNEX 2 (Images) ....................................................................710 Published by Penn Law: Legal Scholarship Repository, 2017 630 U. Pa. J. Int’l L. [Vol. 38:2 1. INTRODUCTION 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 in- ternationalized 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 de- fend humanitarian values in the century after the Napoleonic wars.2 That these stories have been relegated to a narrative hinter- land belies the important role each played in establishing an inter- national criminal law vocabulary and shaping subsequent expecta- tions 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, Rus- sia, Great Britain, the United States, and neophyte Japan) with in- terests 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 mur- dered in Paoting-Fu;4 securing and punishing that city thereafter became a priority for the Allies, who organized a punitive expedi- tion after securing footholds in the nearby cities of Tientsin and Peking. The operation could have taken the form of other Allied expe- ditions, which were characterized by acts of extreme violence to- 1 See, e.g. A. CASSESE & P. GAETA, CASSESE’S INTERNATIONAL CRIMINAL LAW 247 (2013) (explaining the origins of international criminal law). 2 See, e.g., infra notes 83, 158, 159. 3 See Jenny S. Martinez, Human Rights and History, 126 HARV. L. REV. 221, 237 (2013) (discussing how past ideas provide a vocabulary that shape the ways in which we think about problems). 4 Department of State, No. 376 Mr. Conger to Mr. Hay, Inclosure 2, Bishop Favier to Mr. Pichon, French Minister, in PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES, WITH THE ANNUAL MESSAGE OF THE PRESIDENT, TRANSMITTED TO CONGRESS, 180 (1900) (reporting that more than seventy Christians have been massacred in Paoting-Fu) [hereinafter FOREIGN RELATIONS 1901]. https://scholarship.law.upenn.edu/jil/vol38/iss2/6 2017] AN EXPERIMENT WITH INTERNATIONAL JUSTICE 631 ward Boxers (or unlucky civilians who came from villages suspect- ed of harbouring Boxers). But the Paoting-Fu expedition was dif- ferent. 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 ad- ditional trial in Tientsin for a fifth. The punishment was approved by the Allied Field Marshal, the German General Alfred von Wal- dersee, and carried out on November 7, 1900. The trial was the on- ly one of its kind held as a result of the intervention, as the pun- ishment of other middle and high-ranking Chinese officials proceeded on the basis of negotiations between the Qing govern- ment and the intervening powers. Although the Commission has recently received some brief at- tention 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 com- munities they represented? What consequences did the trial have for the development of international criminal law? Drawing on previously unexplored material from state ar- chives, published