A Supranational Criminal Tribunal for the Colonial Era
A Supranational Criminal Tribunal for the Colonial Era
The Franco-Siamese Mixed Court
Abstract and Keywords
This chapter examines a specific provision inserted into one of the two treaties that marked the end of hostilities between France and Siam in 1893 — a provision that stipulated the establishment of a Mixed Court. The chapter is organized as follows. Section II discusses how such an unusual article came to be included in an otherwise typical colonial-era agreement. Sections III and IV describe the prosecutions before a Siamese Special Court and later before the Article III Franco-Siamese Mixed Court. Finally, Section V discusses the significance of the Mixed Court as an international criminal law phenomenon, including its role as a progenitor of contemporary international criminal law mechanisms and the substantive and procedural laws they apply.
The year 1892 was one of great change for the institution of French colonialism. The emergence of a French electorate preoccupied with colonial matters and sensitive to threats, real and perceived, to France’s imperialistic pretensions1 coincided with a rise in the political fortunes of the most opportunistic and demagogic members of the parti colonial to create an environment favorable to the adoption of aggressively expansionist policies and projects. The impetus towards expansion manifested early on as a breakdown in French-Siamese relations. When the British government announced in 1892 its intention to cede its territorial rights over the Southeast Asian statelet of Chieng-Keng to Siam, the decision was seized upon by the parti as evidence of an international conspiracy to expand England’s regional influence at the expense of French Indochina. Championing a policy of forceful confrontation and military intervention, the parti successfully agitated for the dispatch of a ‘police force’ to occupy the easternmost territories of Siam.2
The French anticipated a quick and uncomplicated victory, but the campaign took an unexpected turn when Inspecteur de la Garde Civile Grosgurin died at the hands of Siamese troops at Kham Muon. Grosgurin’s demise further whipped the parti and the French nation into a nationalistic frenzy, so much so that an (p.51) Article specifically related to the incident was inserted into one of the two treaties that marked the end of hostilities between France and Siam. Pursuant to Article III of the Franco-Siamese Convention of October 1893:
The authors of the assassination of [Kham Muon] shall be tried by the Siamese authorities. A representative of France shall be present at the trial and witness execution of the sentence pronounced. The French Government reserves the right to appreciate whether the punishment is sufficient and, where applicable, claim a new trial before a Mixed Court, whereof it shall determine the composition.
This provision was exceptional among colonial-era agreements; the establishment of a Mixed Court represented a radical departure from precedent, which favoured the trial of persons accused of crimes committed during military operations before the national courts ‘of the belligerent in whose hands they [were]’.3 How such an unusual article came to be included in an otherwise typical colonial-era agreement is discussed in greater detail in section II. Sections III and IV will describe the prosecutions of the ‘author of the assassination’, initially before a Siamese Special Court and later before the Article III Franco-Siamese Mixed Court. This chapter concludes with a discussion of the significance of the Mixed Court as an international criminal law phenomenon, including its role as a progenitor of contemporary ICL mechanisms and the substantive and procedural laws they apply.
(II) The Affair of Kham Muon and Negotiation of the Convention of 3 October 1893
Although France was relatively late to stake a claim in Southeast Asia, by 1885 it had established effective control over most of the territory comprising contemporary Vietnam and Cambodia. The French, however, remained covetous of the more lucrative trade routes thought to lie just beyond their grasp to the west, and in 1886 and 1889 sponsored missions into Laos, a Mekong River-straddling suzerain of Siam whose easternmost frontier delimited the border between French Indochina and Siam. The purpose of these incursions was two-fold: first, to legitimate French claims that the Mekong was the appropriate border between the two sovereigns by uncovering archival evidence that Laotian territories running along the east bank of the river rightfully belonged to states that were now French colonies; and second, to pave the way for a French commercial and political presence in the Mekong Valley by negotiating the withdrawal of Siamese garrisons along the east coast of the River.4
August Pavie, the leader of both missions and future French consul to Bangkok, failed to achieve either objective. The explorer unearthed so little evidence supportive (p.52) of a theory of Vietnamese (and by extension French) possession that in his final report he recommended avoiding negotiations with Siam until his employers were prepared to answer competing territorial claims with force, and the Siamese effectively counteracted the commercial and political aspirations of the Missions Pavie by denying the eponymous leader permission to negotiate directly with civilian and military leaders living in the Mekong valley.5 Frustration over these failures prompted the parti to contemplate more forceful means of compelling Siam into ceding the disputed Laotian territories to France. A suitable casus belli for the deployment of French troops to the disputed region was found in December 1892, when the English handed over control of the northern Mekong territory Chieng-Keng to Siam. The move convinced key colonialists that England had insidiously been encouraging the Siamese to reject French claims over eastern Laos all along, and the parti eventually convinced the French parliament to accept their plan for an immediate and forcible eviction of Siamese officials and troops from the Mekong’s east bank.6 After receiving the blessing of the Chamber of Deputies, the parti leadership wasted no time in dispatching armed columns of French and Annamite (Vietnamese) soldiers to the contested region, and by April 1893 French ‘police forces’ had established a toehold in Laos.7
Because the parti expected Siam to offer only a ‘comic gesture of resistance’8 it came as a considerable surprise when Captain Luce telegrammed Paris that the Siamese Commissioner of Kham Muon, Phra Yot, who had initially agreed to peacefully relinquish the contested territory and to leave for Outhene under the ‘protection’ of an armed escort led by M. Grosgurin, had in fact ‘secretly sent for a band of 200 armed Siamese and Laotians[,] who surrounded…the house where [M. Grosgurin] was lying ill, and “assassinated [him] with a revolver” whilst the band massacred the escort’.9 The parti immediately demanded full reparations for the ‘act of treason’, sent three men-of-war from Saigon to Bangkok and ordered the (p.53) capture of the Gulf Islands in the Bay of Samit and Luang Prabang.10 The Siamese, however, doubted the veracity of Luce’s telegram, and refused to pay reparations unless and until additional reports confirmed that events had taken place in the manner described therein.11
News of Siam’s temporizing in the face of Grosgurin’s ‘murder’ remained on the front page of the major Parisian periodicals for over a month,12 where it fed a wave of anti-Siamese sentiment that emboldened the parti to enlarge their territorial claims and agitate the remainder of the French political establishment into action.13 On 20 July 1893 the French parliament communicated its first formal ultimatum to Siam, by which Bangkok was required to (1) relinquish all rights to the east bank of the Mekong; (2) pay an indemnity to the victims of various acts of Siamese aggression; and (3) punish the officers responsible for various attacks on French troops, including the Grosgurin attack. Failure to accept the terms of the ultimatum within forty-eight hours would result in a blockade of the Siamese capital.14 The Chamber of Deputies also unanimously ratified the decision of Foreign Minister Jules Develle to send Charles Le Myre de Vilers, the parliamentary deputy for Cochinchina, to Bangkok, with instructions to negotiate a treaty that would guarantee French territorial rights along the Mekong River and secure compensation for Siam’s various ‘violations of jus gentium’.15
(p.54) Two days later Gustave Rolin-Jaequemyns, the Belgian General Advisor to the King of Siam, drafted and sent a qualified acceptance in which Siam (1) agreed to withdraw their military posts from the disputed territory within the month, but suggested that the dispute over ownership of the territory be submitted to international arbitration; (2) consented to paying the indemnity demanded, but proposed that a Joint Commission be established to investigate the French claims; (3) confirmed its readiness to deposit a 3,000,000-franc guarantee with the French, but emphasized that the Siamese counted on ‘French justice’ to restore to them any sum remaining after the ‘equitable adjustment of all claims’; (4) assented to the punishment of any individuals ‘responsible for personal attacks not in compliance with national and international law’; and (5) accepted responsibility for paying reparations to the families of the deceased ‘in accordance with ordinary justice’.16 Alas, the Siamese reply was considered ‘insolent’ and ‘unsatisfactory’ by Develle, and prompted the umbrageous French cabinet to escalate their demands once more.17 After announcing the imposition of a blockade on 26 July 1893, the French sent a ‘declaration’ to supplement the terms of the ultimatum, inter alia obliging the Siamese to withdraw all troops located within twenty-five kilometres of the Cambodian border and accept the French occupation of Chattaboon.18 The Siamese, fearful of losing additional territory, unconditionally acquiesced to the ‘second Ultimatum’ that same day.19
Le Myre’s arrival in Bangkok on 16 August 1893 marked the beginning of the second phase of negotiations between France and Siam.20 Although Develle had cautioned the Plenipotentiary to adopt ‘an attitude of benevolence’ during the (p.55) negotiations,21 Le Myre made no secret of his intention to impose ‘very harsh’ measures on the Siamese, with whom he considered negotiating ‘a waste of time’.22 Indeed, the record of negotiations is rife with instances of Le Myre attempting to deceive, bully and frustrate the Siamese negotiator, Prince Devawongse, into surrendering more than the ultimatum had demanded.23 For example, during their second meeting Le Myre requested that the Prince affix his signature to an unexamined copy of the proposed Treaty of Peace and Friendship ‘as a matter of form’. When the Prince politely declined, Le Myre menacingly reminded him that the French warships stationed in the Gulf could make matters ‘at any moment quickly change for the worse’.24
Le Myre’s conduct was particularly egregious with respect to the settlement of what had come to be known as the Affair of Kham Muon. The French Plenipotentiary arrived in Siam determined to see Phra Yot brought before a predominantly French Franco-Siamese Mixed Court,25 but with the exception of one presumptive and offhand remark to Devawongse that the ‘culprits’ of the Affair of Kham Muon would ‘of course’ face a court composed of the ‘competent Siamese authorities in conjunction with [French] Consul’26 Le Myre refused to discuss the matter, preferring to hold it in terrorem over the Siamese.27 The telegrams exchanged between Le Myre and Devawongse tell their own story: throughout September 1893 the French Plenipotentiary constantly protested that Siam had failed to fulfil its obligation to punish ‘guilty parties’ involved in the Kham Muon incident, and demanded that Siam grant additional concessions as a consequence,28 even as Devawongse affirmed Siam’s willingness to bring the individuals the French considered guilty before an (p.56) impartial domestic court, pending confirmation from the Plenipotentiary that this would satisfy France.29
The question of Phra Yot’s fate came to a head on 29 September 1893, when Le Myre handed Devawongse a draft Treaty and draft Convention, the latter incorporating his as yet unseen proposal for a trial of Phra Yot before a Mixed Franco-Siamese Court (Article III), and announced his intention to leave for Saigon with or without an agreement within four days. Rolin-Jaequemyns spent the evening reviewing the terms of the proposed Convention and, finding himself in agreement with Devawongse that Article III was ‘completely unacceptable’, immediately began work on a note verbal summarizing Siam’s objections.30 In the note, which was delivered to Le Myre on 31 September 1893, Rolin-Jaequemyns protested that ‘the Siamese government do not think that it is in their power to violate by a retroactive disposition the individual right, recognized by Treaties, of any of their subjects to be judged by a competent Court of their own nation’.31
On 1 October 1893, the two Plenipotentiaries commenced a final round of negotiations. Le Myre flatly refused to alter the language of the Convention itself, but agreed to address Siamese concerns over Article III in a proces-verbal to be appended to the Convention.32 He also insinuated that a rejection of the draft Treaty and the unmodified draft Convention would incite the French to authorize additional attacks against Siam.33 Facing a ‘third Ultimatum’,34 mindful of the inferiority of Siam’s armed forces, and exhausted by months of French cavilling, deception and abuse,35 the Prince finally capitulated and signed the Treaty and Convention, (p.57) thereby committing Siam to trying Phra Yot before a domestic court and, at the discretion of the French, before a Mixed Court as well.
Rolin-Jaequemyns was furious at Devawongse’s ‘act of inconceivable weakness’ and drafted a letter to Le Myre ‘highlight[ing] the gaps’ of Article III.36 In his last-ditch effort to alter the Convention language, Rolin-Jaequemyns characterized Article III’s inclusion in the signed Convention as a ‘common oversight’, suggested extricating the Article from the Convention before news of the agreement was publicized, and reiterated the concerns of his letter of 31 September 1893, adding that:
[I]f there is some sort of mixed jurisdiction in civil cases where both parties belong to different nationalities, there is none at all in criminal cases…It would thus be a serious infringement on individual rights to create a Mixed Court for the trial of past crimes or offences, infringement all the graver if the composition of the Court depends upon a State to which the accused do not belong.37
Le Myre again declined to remove the controversial provision, arguing that Rolin- Jaequemyn’s ‘reasoning [was] based on an incomplete draft of the Convention’,38 and on 3 October 1893 the Siamese government publicly acknowledged their acceptance of the unmodified Treaty and Convention.39
(III) Phra Yot’s Trial before a National Tribunal
(1) Designing the Special and Temporary Court
The Siamese were understandably sceptical that anything other than a guilty verdict coupled with a harsh sentence would mollify France. In a final effort to avoid the humiliation of having a Siamese subject who had resisted France be brought before French judges, in January 1894 the Siamese sent a telegram to Pavie proposing the creation of a ‘Mixed International Court’ presided over by neutral American and Dutch consular officials and an English Law Officer from Singapore.40 A trial before such a court, the Siamese argued, would provide the French government and (p.58) the European public with ‘guarantees of impartiality’ beyond those of a national court.41 But Pavie was intransigent, and dismissed the suggestion as contrary to the terms of the Convention,42 leaving the despondent Siamese with no alternative but to sign into law a Royal Decree creating a ‘Special and Temporary Court’ to try Phra Yot.43
Despite the virtual certainty that Phra Yot would end up before French judges, the Siamese went to considerable effort to design a domestic court that, under different circumstances, might have brought the Affair of Kham Muon to a mutually satisfactory resolution.44 The Court applied existing Siamese legal codes but operated according to procedural rules inspired by the laws of England and France.45 Special Court proceedings were adversarial in nature but presided over by six judges and one Chief Justice with broad powers to summon foreign subjects, compel Siamese subjects to give evidence or produce documents, and generally to ‘take proper measures to enlighten the conscience of the Court and to remove from the proceedings all causes which appear of a nature to prolong it’.46 The accused had the right to the assistance of one or more counsel, as well as the right to provide a full answer to the charges, to cross-examine any prosecution witness, to produce witnesses and evidence in his defence, and to have ‘the last word’ in Court.47 He was also entitled (p.59) to a translated copy of any evidence brought against him in a language he did not understand.48 The Court was obliged to work without interruptions other ‘than those which [were] necessary for the ordinary wants of life’ and to deliver a judgment within twenty-four hours of the conclusion of the closing arguments.49 The Royal Decree also authorized a representative designated by the French government to confer with the Siamese prosecutor as to the content of the indictment, request that a particular witness be heard, cross-examine a defence witness and offer ‘remarks’ to the prosecution concerning the content of their closing arguments.50
(2) The culture of the courtroom
Dr John MacGregor, an English Officer in the employ of the Indian Medical Service, happened to be passing through Siam for the commencement of Phra Yot’s trial on 24 February 1894. He captured the occasion in his memoirs:
The court-room, where the case was tried, was in one of the large public buildings within the enclosure of the walled city; and it was only a comparatively small room, though honoured with so great a trial. On the elevated dais sat the six Siamese judges, in the centre of whom sat and presided HRH Prince Bitchit. To the right hand of the court and below the dais sat the French advocate, the French consul, and a French legal expert, who had come all the way from Saigon to watch the case. To the left of the court and facing the French party sat the defending pleaders, consisting of an English and a Cingalese lawyer, while the Crown Prince’s ex-tutor acted the part of interpreter, in preference to coming with me through the wilds of Siam. Immediately in front and behind the judges was the Recorder’s table, with three or four people sitting at it; and this party seemed to me to act the part of a ‘buffer state’ between the other two parties, and thus prevented a fresh collision on the floor of the court house.
Last, but not least, there sat in front of the Recorder’s table no less a personage than Phra Yott [sic] himself, who was being tried for his life for all these crimes mentioned above, and who was the immediate cause of all this hullaballoo, the echoes of which have not yet quite died away. It is needless to say that he was the observed of all observers. He was dressed in a blue coat and waistcoat, and a skirt that bore some distant resemblance to a kilt, but folded up behind in Siamese fashion, while on his feet he wore the daintiest little pair of pumps, and the long white stockings, reaching above the knee, which are so very much affected at the present time by the real Pink-’uns of Siam.51
After a preliminary objection to the presence of a key prosecution witness in the court room during open session (sustained) and a request that the trial be adjourned for ten days to allow the defence team additional time to prepare (overruled), the court recorder read out the acte d’information.52 Phra Yot had been charged with ordering the wilful and premeditated murder of Grosgurin and an unknown (p.60) number of Annamite soldiers, robbery, arson, and the infliction of severe wounds or bodily harm on Boon Chan, Grosgurin’s Cambodian interpreter, and Nguen van Khan, an Annamite soldier hospitalized as a result of wounds inflicted by the Siamese at Kieng Chek.53
Despite the gravity of the accusations levelled against him and the severity of the punishments he potentially faced,54 Phra Yot displayed perfect sangfroid during the reading, a reaction that made quite an impression on the audience. The Bangkok Times correspondent covering the trial noted Phra Yot’s ‘considerable resource and self control’,55 James G. Scott, British chargé to Bangkok, wrote in his personal journal of Phra Yot’s ‘peaceful’ presence,56 and Dr MacGregor effervesced that:
[The Accused] was as cool as the proverbial cucumber, chewing his betel all the while with appreciative gusto. He did not appear bloodthirsty or ferocious in any way, and had nothing in his appearance to distinguish him either as a felon or a hero. After the usual preliminaries had been gone through, and after Phra Yott [sic] had pleaded ‘not guilty’ to the series of charges laid against him, he left the Recorder’s table, and went to sit beside his counsel to the left of the court, and still under the guard of a Siamese soldier, who always stood behind him.
By this time he had got tired of chewing his betel-nut, and so he calmly took out of his pocket a great big cheroot, and commenced to smoke it there and then! The scene would strike any European with surprise, if unacquainted with the ways and manners of Eastern nations—to see the prisoner, tried for his life, and yet pulling away at his cheroot in the open court, as if the results of the trial were a matter of mere indifference to him. Most Europeans would have their throats a little too dry for smoking under the circumstances, and I should have liked very much to have possessed the brush of a ready artist, to depict the scene which I am now trying to describe with the more humble material of a scribbling pen.57
The attitude and conduct of the two French Representatives (M. Pavie and M. Ducos, President of the Court of Appeal in Saigon) left an equally indelible impression on those who attended the trial. In his official account of the proceedings for the Foreign Office, Scott took care to report that the representatives ‘scoffed openly at the whole proceedings, habitually came late, knowing that…by the terms of the Convention…the Court could not sit without them, and did not hesitate to repeat daily that the trial was a mere waste of time, because the case must of necessity be tried again before a French Court’.58 Comparing the ‘high handed’ behaviour of the representatives to that of Le Myre de Vilers, Scott also informed the British Foreign Office that Ducos, who had worked with the Siamese (p.61) prosecutors to ‘frame [the acte d’information] in accordance with his ideas’59 and drafted what would become rules 22 and 23 of the Royal Decree,60 and Pavie, who had consented to the Royal Decree and declined to object to the appointment of the Siamese judges,61 had both subsequently refused to publicly acknowledge their role in the development of the Court.
(3) Phra Yot’s vindication by the Special Court
The representatives doubtlessly anticipated that, by their belligerence and mendacity, they could disrupt the trial proceedings and frustrate Siamese efforts to legitimize the Special Court in the eyes of the European public. Although Pavie and Ducos achieved some success in accomplishing the latter, they utterly failed to bring about the former. In fact the Justices, drawing on the testimonies of the single prosecution witness (Boon Chan) and seven defence witnesses (including Phra Yot) that were heard over eight days of public session, impressively managed to pull together the first complete and convincing narrative of the events leading to the affray at Kieng Chek.
According to the Court’s exonerating verdict of 17 March 1894, in mid-May 1893 an armed column of French and Annamite soldiers commanded by Captain Luce was dispatched to Kham Muon with orders to depose the Siamese Commissioner of the province. The Commissioner (Phra Yot) resisted the French for several days, but on 23 May 1893 submitted under protest and agreed to be escorted to Kieng Chek, in Outhene, by a small contingent of Annamite troops under the command of Inspector Grosgurin. Phra Yot’s protests were recorded in a letter addressed to Captain Luce, in which the deposed Commissioner insisted upon Siam’s ‘continued absolute rights’ over the territory, committed Kham Muon ‘to the care’ of the French until such time as he ‘received any instructions’, whereupon he would ‘arrange the measures to be taken subsequently’, and required that the letter be forwarded to the Siamese government ‘so that the matter may be examined into, and a decision may be arrived at’.62 Phra Yot then surreptitiously sent a second letter to the nearby (p.62) Commissioner of Outhene, Luang Vichit, in which he appealed for assistance, in the form of men and arms, in overcoming his French escort.63
When the convoy reached Kieng Chek Inspector Grosgurin was informed that Phra Yot’s second in command, Luang Anurak, had been seen publicly advocating armed resistance against the French. Luang Anurak was promptly arrested and taken to Grosgurin’s house, where he remained in custody. Phra Yot, anxious that he would face a similar ‘act of violence’, secretly set out for nearby Wieng Krasene that evening. Along the way he met troop commanders Nai Tooi and Nai Plaak, who had been ordered by the Commissioner of Outhene to take fifty troops and, with the cooperation of forces from Kham Muon, secure Phra Yot and eject the foreign soldiers from the country.64
On 3 June 1893 Phra Yot, Nai Tooi and Nai Plaak led approximately twenty Siamese soldiers to Grosgurin’s residence in Kieng Chek. As they communicated their demands to the Inspector, who was in poor health, Luang Anurak ran out of the house, prompting the Annamite soldiers to fire upon the Siamese. Nai Tooi, Nai Plaak and Phra Yot held a brief consultation and jointly issued an order to return fire. Inspector Grosgurin, approximately twelve Annamite soldiers, six Siamese soldiers and one Siamese translator were killed during this exchange.65
The Justices unanimously absolved the accused of all direct or indirect responsibility for Grosgurin’s death, Boon Chan’s and Nguen van Khan’s wounds, the thefts and the house fire.66 In a poorly organized but otherwise insightful and compelling opinion the Justices explained that Phra Yot was not in command of the Siamese soldiers that had fired upon the French and Annamite forces:
It is true that the accused had a higher position in the permanent service than the two officers; but his authority extended only to the districts of Kham Kurt and Khammuon [sic]. If the accused had acted like this when he first met M. Luce he would have born the whole responsibility; but it was otherwise when the accused allowed the Annamite soldiers to drive him out of the stockade and to escort him to the frontier. Even if he could get away from the authority of M. Grosgurin he could only consider himself under the orders of other people, namely, in this case, of Nai Tooi and Nai Plaak. These, again, were acting under the order of Luang Vichit Sarasate, who was the civil and military Commissioner at Tar Outhene and Kammoun…The accused could only be considered as a councillor, as the soldiers were under the command of the two officers…Even, therefore, if the accused should have given such orders, the only orders, which could be obeyed, were the orders given by the officers.67
The Justices also addressed the prosecutor’s allegation, not mentioned in the acte d’information but developed during their closing arguments, that Phra Yot had, by his letter to Captain Luce of 23 May 1893, ‘implicitly engaged himself not (p.63) to commit any act of hostility against the French’.68 The Justices rejected this interpretation, stating that:
[I]f Counsel for the Prosecution maintains that [the letter] is a handing over according to Treaty, and that [Kham Muon] could not be recovered by force of arms, they have wrongly interpreted those words. We must understand the letter to mean that the accused expressed his unwillingness to accede to the request of the French, and that he would take measures to recover when occasion offered. The letter cannot be considered as binding as a Treaty, as Phra Yot had no right to act in this matter for his Government.69
The Justices further adduced in dicta that the accused had been acting pursuant to the orders of a superior, and was therefore absolved of any legal responsibility:
The soldiers who were examined in Court stated that they acted according to the orders of the officers. Even, however, if the accused had to share the responsibility with the two officers it can only be said that he acted under the orders of [Luang Vichit]…For the affray itself no individual responsibility exists.70
Finally, in one of the more abstruse sections of the judgment, the Justices suggested that Phra Yot’s issuance of the order to fire was excused as a matter of self-defence or duress, and was a reasonable response to the danger faced by the Siamese forces. Thus:
When the officers saw that several Siamese had fallen it became the duty of the soldiers to resist. They soon saw, however, that whether they offered resistance or not they had to die, and therefore the fire was returned. The Siamese soldiers were far more numerous than the opposing party and the result was what might have been expected. The fault does not lie with the accused or his men. We are, therefore, unanimously of the opinion that the act of the accused, and the two officers was done in strict execution of their duty.71
The Justices did not explicitly address the defence submission that the law of war applied to the affray between France and Siam in Kieng Chek, and that Phra Yot had acted entirely consistent with his obligations under international law.72 The reluctance of the Justices to rule on this issue is understandable. The French had maintained that its engagements with Siamese forces and incursions into disputed territories had not amounted to declarations of war,73 and a ruling by a Siamese court to the contrary would have endangered the fragile détente that had prevailed between the two powers since October 1893. However, there is little doubt that, had the political stakes been lower, the Justices would have resolved this question in favour of the accused; throughout the judgment the Justices repeatedly referred to French and Annamite forces as ‘armed invaders’ and the ‘attacking party’.74
Public opinion on the Special Court’s verdict was split along predictable lines. The non-French expatriate community in Siam and the Siamese regarded Phra Yot’s exoneration as reasonable and the Special Court proceedings as fundamentally fair,75 while the French in Paris and Bangkok perceived the decision as inevitable and a blow to ‘all who were hoping that the Franco-Siamese Agreement would lead to just satisfaction’.76 In an interview published in Le Matin, Le Myre explained that he was ‘not at all surprised’ at the verdict given his familiarity with ‘the Asian temperament and their approach to interpreting Treaties’, and pledged that the ‘blatant efforts of the Siamese Government to support its officials will run afoul of our firm commitment to demanding just satisfaction’.77 One high-profile French official who wished to remain anonymous declared to a correspondent from the Éclair that an ‘ordinary conviction’ would have caused him the ‘deepest amazement’, and promised that Phra Yot would be convicted by a mixed tribunal on the basis of ‘arguments and a surfeit of evidence that will humiliate and shame Siam’.78
(1) The jurisdiction and rules of the Mixed Court
Ducos made known his intention to constitute the Article III tribunal one day after the Special Court handed down its decision, and on 26 May 1894 the French and Siamese ‘mutually consented’ to rules of procedure that established a mixed court with jurisdiction over the Kham Muon affair.79 The Mixed Court was to be (p.65) presided over by two French judges, two Siamese judges and a French President, each authorized to ‘ask from the witness or the accused any explanation…necessary to discover the truth’.80 The accused was entitled to:
1) receive a copy of the acte d’accusation at least three days in advance of his trial;
2) ‘appear free’ before the Justices;
3) the assistance of counsel;
4) receive a faithful translation of the proceedings;
5) respond to the testimony of prosecution witnesses;
6) put questions to a prosecution witness through the President;
7) present exculpatory evidence, including evidence that undermined the credibility of a prosecution witness.81
The Rules also defined the crimes over which the Mixed Court would exercise jurisdiction (murder, assassination, theft, incendiarism, parricide, infanticide and poisoning) and listed the applicable modes of liability,82 pursuant to which the prosecutor submitted the following acte d’accusation on 27 May 1894:
The accused Phra Yot Muang Kwang, about 40 years of age, Siamese mandarin…, is accused:
1) Of having, at Kieng Chek, been an accomplice in a wilful homicide committed on the person of…Grosgurin, in provoking by culpable machinations and artifices, the said homicide; in giving himself to the author or authors instructions for its committal; in procuring arms and other means of action, knowing they would be used for that purpose and in aiding and knowingly abetting the authors in the acts which prepared, facilitated, and consummated it. With this circumstance, that the said homicide was committed with premeditation.
2) Of having, under the same circumstances of time and place, and by the same means enumerated above, become accomplice of the crime of wilful homicide committed on the persons of diverse Annamite militiamen and of the Cambodian interpreter Boon Chan. With this circumstance, that the said homicides were committed with premeditation.
(p.66) 3) Of having, under the same circumstances of time and place, been an accomplice in diverse thefts of personal property, effects and apparel, arms and munitions, committed to the prejudice of the same and of the Annamite militiaman Nguen van Khan and knowingly concealing all of part of the articles stolen.
4) Of having, under the same circumstances of time and place, been an accomplice of the crime of wilful incendiarism of diverse Laotian huts used for habitation, in giving instructions for its committal and knowingly aiding and abetting the authors in the acts which prepared, facilitated and consummated it.83
The Rules prescribed capital punishment for an accused found guilty of murder, assassination, theft or incendiarism, but permitted the judges to exercise their discretion and reduce a death sentence to between five and twenty years hard labour if, in their opinion, ‘extenuating circumstances in favour of the Accused’ existed.84
(2) Phra Yot’s re-trial before the Mixed Court
Phra Yot’s trial before the Mixed Court, which commenced on 4 June 1894, was a theatrical affair. The trial itself was held in the French Embassy, in a room guarded by marines armed with loaded rifles and fixed bayonets. Entry to the trial was granted exclusively to individuals who had received a ticket from the French legation, and the accused was transported to and from court in chains.85 Over the course of four days President Mondot (President of the Court of Appeal at Hanoi), Judge Cammatte (Councillor of the Court of Appeal at Saigon), Judge Fuynel (Procurer of the French Republic at Mytho), Judge Maha Thibodia and Judge Phya Sukari heard the testimony of the accused, Nguen van Khan and six defence witnesses.86 Almost all of the witnesses had already testified or had their statements read before the Siamese Special Court, and their evidence before the Mixed Court (p.67) was consistent with the version of events that each had previously provided. Only President Mondot’s examination of the accused is noteworthy, not for its particularly effective extraction of hitherto undiscovered evidence, but for the President’s aggressive style of questioning:
Did Grosgurin explain to you why he arrested Luang Anurak?
He told me because Luang Anurak had spread certain alarming rumours at Kham Muon that the Siamese would return in force.
Grosgurin had a perfect right to arrest Luang Anurak after that, in self defence, for he was in an unknown country and only had a handful of men whose fidelity was doubtful. …
Considering that France and Siam were not at war at the time, why did you take such a large body of men to ask for the release of Luang Anurak, seeing that Grosgurin and the Annamites were living in private houses?
I had not at the time the least intention of attacking Grosgurin. I simply went to ask for the release of Luang Anurak.
It is quite impossible to believe that Grosgurin who was sick and whose party was the weakest would be the first to attack. The Siamese witnesses have stated that there were at least 100 men surrounding the house. …
here stated that after Grosgurin had been told that peace would be broken Luang Anurak jumped from the verandah when immediately a shot was fired from the house which killed a soldier from Korat. Several other shots followed and two more men fell before the Siamese began firing. The men of Grosgurin were arrayed at the foot of the stairs. Grosgurin was above.
That version is difficult to believe, all the witnesses have agreed that this was not so, in their depositions in Saigon and Bangkok.87
(3) The Mixed Court’s verdict
On 13 June 1894 the Affair of Kham Muon was brought to a close when the accused was found guilty by majority (the two Siamese judges refused to sign the verdict) as an accomplice to the assassination of Grosgurin and fifteen Annamite soldiers, but acquitted of any thefts and burning that took place during or after the gunfight.88 The gravamen of the verdict lay in the fact that:
By [his letter] dated May 28 Phra Yot repudiated the formal engagement contained in the letter he had written five days before to Capt. Luce; in breaking thus the compact which he (p.68) had freely made with the French officials without even being able to pretend now that he had received at that moment any order, any advice which led to that sudden determination he not only committed a disloyal act, he spontaneously and voluntarily assumed the penal responsibility of the crimes which would necessarily result as the immediate consequence of that provocation.
It was [Phra Yot] who caused troops to arrive, who went himself to fetch them at Wieng Kratone, and who conducted them to the place where, under his direction and with his assistance, they committed the murder which it is the duty of the Court to punish.89
The majority recognized Kham Muon as French territory90 and reasoned that the laws of war could not be applied to the case, inasmuch as Convention Article III had described the act the Court was charged with examining as ‘attentat’ and thereby confirmed that ‘[p]eace reigned between France and Siam’ at the time the crime was committed.91 The majority also declined to exonerate the accused on the grounds of self-defence, noting that:
If the law allows the legalisation of an act committed when we are menaced with death, it is only in the case in which the imperious necessity of self-preservation makes it a duty. One can only resist an aggression; and it is evident that Grosgurin, confined to his room by illness, as is attested by all the witnesses who were near him, surrounded by a small number of Annamites, could not for an instant have thought of attacking the numerous armed troops which surrounded his house.92
Phra Yot was sentenced to death for the assassinations, but had his sentence commuted to twenty years’ hard labour on the grounds that he had not acted with the ‘view to gratify…cupidity and to satisfy [the] feeling of hatred or personal vengeance’ that characterized the ‘ordinary assassin’.93
The Siamese, who had always suspected that French judges would be biased against the accused,94 toyed with the idea of refusing to carry out any sentence and contemplated ‘forcible resistance’ against the French as early as 10 June 1894, several days before the verdict was handed down.95 But it was France’s decision to follow the verdict with a demand that Phra Yot serve his time in a French penal colony that cemented Siam’s will to resist.96 The Siamese government expressed its willingness to carry out Phra Yot’s punishment on Siamese territory, but categorically (p.69) refused to allow the former Commissioner to be removed from Siam to a place where ‘all language, climate, ideas, would be totally unknown, unintelligible, and foreign to him, and where he would lose, from the first moment, any prospect of ever seeing again his country, his friends and his own family’.97 Only the timely intervention of the British Foreign Office prevented the fragile peace that prevailed between Siam and France from breaking; under a British-brokered plan Phra Yot served his sentence in a Siamese prison, and a member of the French legation visited him periodically to check that his punishment was duly carried out.98
(V) An Assessment of the Mixed Court
Situating the Franco-Siamese Mixed Court in the dominant contemporary narrative of historic international criminal law, which portrays the international justice enterprise as indelibly righteous and even-handed, is not an easy or straightforward task. The Mixed Court is redolent of ‘victor’s justice’ and is inexorably linked to the exploitive institution of colonialism, and Phra Yot’s treatment at the hands of the French instinctively offends our contemporary notions of due process. Moreover, the potentially redeeming qualities of the Court are difficult to definitively characterize as such in the absence of impartial records. Were the Rules of Procedure that afforded the accused basic rights a hard-won victory by the Siamese or a cynical indulgence by French plenipotentiaries confident that their Court appointees would render a verdict favourable to France? Did the French judges perceive themselves to have transcended any quid pro quo associated with their appointment and to have fairly judged the accused? Was the creation of the Mixed Court inspired by the proliferation of neutral inter-state arbitral tribunals that predated it, or was it an extension of the resented and magisterial ‘consular court’ system maintained and operated by the centres of colonial power throughout their respective spheres of influence? Although the biased, fragmented and, in some cases, incomplete papers maintained in the French, Belgian and British archives provide no definitive answers to these questions, in this section I will make a very preliminary attempt to describe the relevance of the Mixed Court to modern ICL in a manner that is consistent with the available evidence.
Impressing the ‘international court’ appellation on the Mixed Court has implications beyond the theoretical; the more international the Court is perceived to be, the more significance will be ascribed to its existence and jurisprudence.
The strongest argument in favour of characterizing the Court as an international entity would be that the judges did not completely foreclose the possibility of applying the international law of war to the proceedings. Recall that the judges rejected the laws of war on the grounds that the 1893 Convention purportedly established that a state of peace prevailed between the France and Siam. This reasoning suggests that the judges believed they could have employed the law of war but for the Convention language to the contrary, and by extension that the Court, with its apparent access to law set forth outside of the four corners of its constituent agreement, was more international than not.
To be sure, this interpretation has a certain intuitive appeal. The conflict between France and Siam falls squarely within the modern conception of war, and crimes of the sort Phra Yot was accused of perpetrating are specifically prohibited by contemporary jus in bello. It must be recalled, however, that in 1893 armed engagements, even engagements between two militias acting under the authority of their respective governments, were often still considered mere ‘acts of reprisal’ (measures of forcible coercion short of war to which the laws of war did not apply).99 Indeed, neither France nor Siam ever acknowledged that they were engaged in a ‘war’. France explicitly referred to the existence a ‘state of reprisals’ between the two adversaries in its 29 July 1893 Statement of Blockade,100 and there is no indication that the Siamese deduced that a state of war existed from the fact that French military operations had been carried out in Siamese territory.101 While it is tempting to conclude that the parties intended to terminate a state of war from the fact that the October 1893 Treaty was referred to as one of ‘Peace and Friendship’ in the Convention of the same date, there is precedent against drawing this inference.102 (p.71) The superior view is that the Court’s insinuation that it had the power, in theory, to draw upon the law of war amounts to specious overreaching. Had the judges actually applied international law, it would have been to acts that the relevant states acknowledged were not governed by that body of law, a result that is counterintuitive and against a great deal of coeval authority.103
Although the Mixed Court lacks for the most distinctive hallmark of internationality (the ability to apply international law) it cannot be understood as a singularly French or Siamese institution.104 The ad hoc nature of the Rules and their appearance in a legal instrument agreed to by two states, the presence of judges from two states on the tribunal,105 and Siam’s agreement (however coerced) to ‘mix’ its jurisdiction with that of France to try the purported criminal Phra Yot, suggests that the Mixed Court is best understood as the first modern supranational criminal tribunal. It is this last component, the pooling of jurisdiction, that is undoubtedly one of the Mixed Court’s most noteworthy features, as it denotes a shift from restrained notions of criminal jurisdiction towards the more expansive and flexible conceptions and practices that would come to characterize the field in subsequent centuries.106
(p.72) Remarkably, the Convenion also anticipated the basic ‘complementarity’ framework that is a hallmark of international crimes prosecutions in the modern era. Convention Article III on its face presumed that a Siamese national court would dutifully fulfill its obligation (regrettably articulated as an obligation to ‘punish’ as opposed to ‘try’) while creating a supranational authority capable of re-adjudicating the matter in the exceptional event that domestic proceedings were deficient. Although the potentially revolutionary impact of this arrangement went unrecognized at the time—the Mixed Court was neither mentioned in contemporaneous issues of the Revue de droit international et de législation compare or the Revue générale de droit international public, nor discussed by the delegates at the subsequent meetings of l'Institut de Droit international or the International Law Association—the Court’s creation pursuant to an instrument that (even insincerely) acknowledged the primacy of a domestic court marks a point of inflection in the development of the idea that a supranational tribunal can be vested with supplemental jurisdiction.
(2) The birth of international due process
Because the Mixed Court is so distinctively ‘modern’ it feels natural to bring our present-day expectations about the nature and quality of international justice to bear upon the Court. From the perspective of today’s reader, the record of the Mixed Court’s operation is rife with questionable decisions and procedural shortcomings. The most obvious of these are the seemingly brief time (one week) the Defence was afforded to prepare its case, the combative and heavy-handed attitude demonstrated by the President of the Court as he questioned the Accused, and the Court’s superficial analysis with respect to the inapplicability of the Law of War and the guilt of the defendant.
It is possible, however, to explain each of these ‘flaws’ without recourse to theories of deceptiveness or tendentiousness. The 1808 Code d’instruction criminelle (‘the Code’), which was applied throughout France and French Cochinchina107 (and with which the three French judges would have been most familiar), did not oblige criminal judges to maintain an appearance of impartiality during trial proceedings. Instead, the Code vested criminal judges with broad discretion to take any action at trial considered ‘useful to discovering the truth’, subject only to the limits of their honour and conscience.108 No French observer would have expected President Mondot to maintain an impartial façade if his judicial instincts suggested he do otherwise. Nor would the insouciantly brief nature of the verdict have shocked French citizens. While the Code obliged judges to submit written opinions, the French never adopted the practice of issuing lengthy or discursive decisions in the (p.73) manner of their common-law counterparts.109 It is also to the credit of the Mixed Court that the accused had seven days to prepare his case, as the Code and the Rules of the Court afforded the Accused a mere three.110 Lastly, while hardly constituting definitive evidence that the French judges excercised their judicial duties without bias, it is noteworthy that they commuted Phra Yot’s death sentence, a decision that is reported as having been unpopular with the French community in Bangkok.111
Moreover, while the decision to decline to apply the laws of war to an armed affray between two state militias may seem prejudicial today, particularly when that body of law may have favoured the accused,112 it must be recalled that in 1894 the line between reprisals and war was fluid, and many eighteenth- and nineteenth- century courts struggled to develop a test that could reliably distinguish between the two states.113 While it is true that at the time of Phra Yot’s trial a number of foreign courts had developed and applied multipart tests that accounted for the ‘objective realities’ associated with the conflagration at issue, including the intent of the parties, the degree of armed resistance to the ‘challenge’ issued by an intervening state and the scale and duration of the hostilities, judges of a more conservative disposition persisted throughout the nineteenth century in looking only to whether an official declaration of war had been issued by at least one of the belligerent parties.114 Taking into account the the unsettled status of the law, the Mixed Court’s ultimate eschewal of the jus in bello in favour of the ad-hoc law set forth in the Rules should not of itself be regarded as evidence of bias.
Of course there are other indications that the French judges, ‘if indeed they had not definite orders, came full of the conviction that if they did not find Phra Yot guilty and punish him they would be found wanting themselves by their countrymen, and would have suffered accordingly’.115 Le Myre had openly treated the verdict as a foregone conclusion, and the French judges that heard Phra Yot’s case enjoyed prestigious positions in France’s colonial possessions. British chargé James G. Scott reported that the President openly scoffed at the defence witnesses before they had even begun to testify, displayed the ‘strongest animus’ towards the accused and excluded his Siamese co-adjutors from deliberations.116 Moreover, it is inherently difficult to regard as unprejudiced a court that took a little over an hour to examine (p.74) all of the defence witnesses, and originated in a convention signed under duress and an Article that prima facie presupposed the guilt of the accused.
Although it is unlikely that the cloud of suspicion hanging over the trial will ever fully dissipate, it is commendable that the Rules of the Court afforded Phra Yot more rights than any enacted or proposed international legal instrument with a criminal component drafted prior to the 1944 Draft Convention for the Establishment of a United Nations War Crimes Court.117 Regardless of any structural or procedural defects that marred Phra Yot’s actual trial, the Rules of the Mixed Court, qua Rules, represented a major stepping stone towards the complete internationalization of the principle that an individual brought before a criminal tribunal is entitled to a fair trial and the benefits of codified procedural protections.
(3) The Mixed Court and the cultivation of new substantive norms
Rolin-Jaequemyns’ objections to the creation of a Mixed Court, raised during the negotiations between Devawongse and the French Plenipotentiary, mark the first time that the legality of a supranational criminal court was challenged on the grounds (1) that one of the state signatories to the establishing treaty lacked the authority to delegate its criminal jurisdiction to such a court; and (2) that bringing an accused before a new tribunal with retroactive jurisdiction over ‘past crimes or offences’ would amount to a serious violation of their rights (nullum crimen, nulla poena sine (p.75) praevia lege poenali). Additionally, it was only the second time that trial before a supranational court had been disparaged as a breach of an individual’s right to be tried by a court of their home country (jus de non evocando), the first being the trial of von Hagenbach before a twenty-eight judge panel at Breisach over four hundred years before.118 Although these objections (regrettably) were not introduced during the trial and therefore were not addressed in the verdict, the establishment of the Mixed Court implicitly affirms the precepts that states can pool their criminal jurisdiction, that the principle of legality does not proscribe an ex post facto supranational court tasked with examining violations of jus gentium from ruling on the individual criminal responsibility of an accused,119 and that jus de non evocando does not preclude a trial before judges of a supranational criminal jurisdiction.
The Mixed Court is also notable as the first distinctively Westphalian supranational tribunal120 to apply the then-nascent doctrines of participative liability and command responsibility,121 as well as to consider motive a mitigating circumstance in the imposition of sentence.122 Alas, the judges’ reasoning is too opaque, their inclination to intermingle discussions of fact with findings on liability and sentencing too pronounced, their verdict too brief and their impartiality in too much doubt to ascribe much meaningful precedential value to any of their scant legal findings.
In light of the international criminal lawyer’s voracious appetite for precedent and the sheer number of successful and unsuccessful attempts to create international courts since 1893, it is shocking that the Mixed Court has not already assumed (p.76) the same totemic status as the trial of von Hagenbach. How has the Mixed Court slipped through the cracks?123
R. John Pritchard, writing on the similarly neglected international crimes trials that followed the Great Powers intervention in Crete in 1898, has theorized that the Allies downplayed their experiences with international criminal law in an effort to conform to the anti-international trial stance maintained by the United States at the close of World War I.124 This theory is not entirely implausible, as there is some evidence that suggests that the Mixed Court was at one time considered worthy of remembrance. There is tantalizing hint, for example, in the form of an 1895 Sydney Morning Herald article discussing the potential criminal liability of Chinese officials for the massacre of European and American missionaries, that the Mixed Court briefly came to stand for the (then novel) proposition that the de facto immunity political figures implicated in mass crimes directed at foreign citizens enjoyed before domestic courts should be circumvented with fair and impartial international tribunals.125 There is also a passing reference to the Mixed Court in a 1931 Recueil des Cours entry on municipal courts, state responsibility and denials of justice, implying that the Court remained relevant to international law experts even after the turn of the century.126
Lacking a legacy, it falls to the current generation of international lawyers to bestow one upon the Court. Certainly there is no shortage of material to work with. The motifs of imperialism, intercultural enmity, fairness and accountability run through the story of the Mixed Court, as they do through the competing narratives interested parties have associated with twentieth and twenty-first century international judicial institutions, and the Mixed Court, as a treaty-based and statutorily-regulated supranational judicial machine applying ad hoc law, is readily identifiable as direct forerunner of these more ambitious and powerful successors. With this in mind, it is clear that the most interesting chapters on the Mixed Court remain to be written.
(1) It was only after colonial problems were reframed as issues of inter-European competition that widespread public interest in colonial affairs was realized. C.M. Andrew and A.S. Kanya-Forstner, ‘The French “Colonial Party”: Its Composition, Aims and Influence, 1885–1914’, Historical Journal, 14 (1971), 1003.
(2) Patrick Tuck, The French Wolf and the Siamese Lamb: The French Threat to Siamese Independence 1858–1907 (Bangkok: White Lotus 1995), 104. France first challenged Siam’s suzerainty over the territories of Laos in 1867, when French negotiators insisted that all phrases that might be construed to imply their acceptance of Laos’ tributary status be removed from a proposed treaty with Siam: 27–9.
(3) Institute of International Law, Manual of the Laws of War on Land (adopted 9 September 1880), Part III (Chapeau and Article 84); James W. Garner, ‘Punishment of Offenders Against the Laws and Customs of War’, American Journal of International Law, 14 (1920), 76–9.
(6) Archives d’Outre-Mer (AOM), Pavie to Ribot, 29 December 1892, No. 40 (referring to an earlier report by the Resident Superior of Hue suggesting that a ‘de facto occupation…will lead promptly…to the withdrawal of Siamese troops’ from the contested area). The parliament budgeted 180,000 francs for the operation: Tuck, above n 2.
(7) Foreign Office (FO) 881/6373, Inclosure ‘Extract from Le Matin of 5 April 1893’, Marquis of Dufferin to Rosebery, 5 April 1893, No. 44 (describing the French occupation of Stung Treng); FO 881/6373, Inclosure ‘Extract from Le Matin of 10 April 1893’ in Marquis of Dufferin to Rosebery, 5 April 1893, No. 48 (describing the French occupation of the Island of Khone). The French authorized a ‘police action’ specifically to avoid the appearance of waging an open war against Siam: Tuck, above n 2, 123.
(8) Archives du Ministre des Relations Exterieures (MRE), Asie-Indochine 83, Jules Harmand, ‘report from Novembre 1892’. August Pavie was of the opinion that ‘[t]he Siamese government, seeing that it has exceeded the limits that our forbearance had seemed to authorize, will doubtless move from one extreme to the other as is generally the case with Asiatics’: Letter from Pavie to Le Myre, 12 December 1893, ‘The Escalation in Franco-Siamese Relations’, Auguste Pavie: The Barefoot Explorer, <http://pavie.culture.fr/rubrique.php?rubrique_id=60&lg=en#ecran2> (accessed 3 March 2013).
(9) FO 881/6793, Inclosure ‘Extract from Le Matin of 27 June 1893’ in Phipps to Rosebery, 27 June 1893, No. 139. See also FO 881/6793, Inclosure ‘Extracts from L’Independant de Cochin-China’ of 16 June 1893 in Marquis of Dufferin to Rosebery, 25 July 1893, No. 146.
(10) Walter E.J. Tips , Siam’s Struggle for Survival; The Gunboat Incident at Paknam and the Franco-Siamese Treaty of October 1893 (Bangkok: White Lotus 2006), 65 (journal entry for 18 June 1893); AOM, Siam 3/46, Lanessan to Declasse, 11 June 1893, No. 95. M. Develle, the French Foreign Minister, warned the English Minister in Paris that he would ‘present matters in their true light’ to the Chamber of Deputies if Siam did not address France’s grievances. Develle assured the English Minister that the Chamber would escalate the conflict by committing an additional 10,000,000 francs and 6,000 men for the operation, and authorizing military operations against Bangkok: FO 881/6479, Phipps to Rosebery, 30 June 1893, No. 6.
(11) Prince Devawongse, the Siamese Foreign Minister, protested to Pavie that:
The event would have happened on the seventh, four days marching away from Kam Muon and it is starting from the ninth that the Annamites bring this news. The Siamese officer would have brought two hundred men from Outhene and…it appears that in Outhene there were only fifty men. The officer, who is Phra Yot, is moreover known as an honourable man and his whole character goes against this accusation of assassination.
Tips, above n 10, 64 (journal entry for 17 June 1893). Pavie, who knew Phra Yot from his time spent surveying Laos during the 1889 Mission, was reported to have had ‘nothing bad to say’ about the Siamese Commissioner at this meeting.
(12) See for example, ‘Le Guet-Apens de Keng-Kien’, Le Figaro (Paris, France), 17 June 1893; ‘Au Siam’, Le Matin (Paris, France), 17 July 1893; ‘Le Question au Siam’, Le Matin (Paris, France), 27 June 1893. Rolin-Jaequemyns confirmed that the incident produced ‘great emotions in Paris’. Tips, above n 10, 65 (journal entry for 18 July 1893).
(14) Ministre des Affaires Etrangères (MAE), Documents Diplomatique, Affaires du Siam, Develle to Pavie, 19 July 1893, No. 12. See also FO 881/6479, Phipps to Rosebery, 19 July 1893, No. 80; FO 881/6479, Rosebery to Jones, 20 July 1893, No. 88; Tips, above n 10, 97–8 (journal entry for 20 July 1893).
(16) FO 881/6479, Jones to Rosebery, 23 July 1893, No. 118; Tips, above n 10, 99 (journal entry for 21 July 1893). By this time French officials had deposed survivors of the events at Kieng Chek and their accounts forwarded to the Siamese. These records apparently confirmed that the French had ‘grossly misinterpreted the circumstances’ and that Grosgurin had been killed in the course of a ‘regular battle’ between French and Siamese forces: Tips, above n 10, 72 (journal entry for 26 June 1893). See also FO 881/6479, Jones to Rosebery, 10 July 1893, No. 19.
(17) FO 881/6479, Marquis of Dufferin to Rosebery, 26 July 1893, No. 158. The Marquis ‘could not help thinking that there was something artificial in the indignation [Develle] expressed, not unlike that exhibited in a conversation on the banks of a stream between two individuals whose memory has been embalmed by a great fabulist’. Develle is reported to have stated that Siam’s ‘disrespectful hesitations and suggested modifications were intolerable when preferred by so insignificant a State to so great a Power as the Republic, and would fully justify France in now taking whatever military or other measures she might deem expedient’: Cabinet Papers 34/34, Marquis of Dufferin to Rosebery, 27 July 1893, No. 41.
(18) Tips, above n 10, 105 (journal entry for 27 July 1893). See also MRE, Correspondence Politique des Consuls (CPC) Siam 16, Pavie to Develle, 23 July 1893, No. 93; FO 881/6479, Jones to Rosebery, 1 August 1893, No. 245.
(20) When the French Plenipotentiary arrived in Siam, Rolin-Jaequemyns immediately sent a letter of introduction explaining his royal authorization to negotiate the terms of a treaty. Le Myre, however, had instructions to ‘categorically…spurn the intervention of foreign advisers’ and refused to negotiate with anyone other than Siamese officials. When Rolin-Jaequemyns learned of these instructions, and upon receiving no reply to his overtures to the French negotiator, he considered resigning from his post. Ultimately he elected to deny the French the ‘pleasure’ of seeing him leave the service of the King and continue advising Prince Devawongse (the Siamese Foreign Minister) behind the scenes: Documents Diplomatiques, above n 14, No. 1; Tips, above n 10, 136–137 (journal entry for 20 August 1893).
(21) MRE, MD Asie-Indochine 87, Develle to Le Myre, 5 August 1893. No. 5.
(22) MRE, CPC Siam 16, Le Myre to Develle, 24 August 1893 (Le Myre believed that ‘European diplomatic niceties are inappropriate in Siam. With Asiatics, you impose your will when you are the stronger, or you stand aloof if you are the weaker.’). See also MRE, MD, Asie-Indochine 87, Le Myre to Develle, 3 August 1893.
(23) FO 881/6479, Inclosure ‘Statement of Circumstances and Proceedings Connected with M. Le Myre de Vilers’ Special Mission to Bangkok’, in Jones to Rosebery, 25 August 1893, No. 423; FO 881/6479, Inclosure ‘Second Meeting of the Conference for the New Treaty of Peace and Friendship’, in Jones to Rosebery, 13 September 1893, No. 454. See also ‘France Not Yet Satisfied—New Demands Daily Forced Upon the Siamese’, New York Times (New York, USA), 30 August 1893.
(24) No. 423, above n 23. See also Tips, above n 10, 141 (journal entry for 24 August 1893). Rolin-Jaequemyns writes in his journal of a letter sent by Le Myre to Devawongse that is ‘unusually insolent, [and] written in a mocking tone which would be sufficient, in an ordinary negotiation, to justify a breaking off’. Neither the Belgian nor French archives hold a copy of this letter. Tips, above n 10, 157 (journal entry for 18 September 1893).
(25) A telegram from Le Myre to Develle from 21 August 1893, drafted three full days before his arrival in Siam, contains the earliest draft of what would eventually become Article III of the Convention. AOM, Siam 4/51, Le Myre to Develle, Draft of the proposed terms of a Franco-Siamese Convention, 21 August 1893, No. 12. Develle initially attempted to persuade Le Myre to reduce Article III to a right to demand a retrial before a Siamese court, but later capitulated and agreed to allow Le Myre ‘to be the judge’ of how best to handle the matter: AOM, Siam 4/51, Develle to Le Myre, 23 August 1893; AOM, Siam 4/51, Develle to Le Myre, 25 August 1893.
(27) FO 881/6479, Jones to Rosebery, 14 September 1893, No. 411.
(28) FO 881/6479, Inclosure No. 1 ‘Le Myre de Vilers to Prince Devawongse’, in Jones to Rosebery, 13 September 1893, No. 453. See also FO 881/6479, Inclosure No. 2 ‘Le Myre de Vilers to Prince Devawongse’ in, Jones to Rosebery, 26 September 1893, No. 494.
(30) Tips, above n 10, 168 (journal entry for 1 October 1893). Captain Henry Jones, British Minister in Bangkok, agreed that ‘the demands of Article III are in violation of all reason and justice’: FO 881/6479, Jones to Rosebery, 12 October 1893, No. 516.
(31) MAE, Siam 16, Enclosure No. 1 ‘Note Verbal sur le Convention’, in Le Myre to Develle, 4 October 1893, No. 110. Rolin-Jaequemyns’ citation to ‘treaties’ was probably a reference to the Treaty of Friendship, Commerce and Navigation between France and Siam, which in Article 9 provided that if ‘a Siamese commit any crime or offence against Frenchmen, he shall be arrested by the Siamese authorities, and punished according to the laws of the country’: Siam Government, State Papers of the Kingdom of Siam, 1664–1886, Compiled by the Siamese Legation in Paris (William Ridgeway, 1886), 43, available in the General Archives of the Kingdom of Belgium, Papiers du Gustave Rolin-Jaequemyns, dossier 1, T-423-1.
(32) In the proces-verbal Le Myre responded to Rolin-Jaequemyn’s objections by noting that ‘foreign jurisdiction is already recognised in Siam, and…Mixed Courts already exist’: FO 881/6479, Jones to Rosebery, 2 October 1893, No. 432.
(33) Although it appears that no record was kept of this final meeting between the French and Siamese negotiators, Devawongse later told Rolin-Jaequemyns that threats of renewed violence had compelled him to sign the Treaty and Convention: Tips, above n 10, 167 (journal entry for 1 October 1893). James G. Scott, Captain Jones’ successor, confirms that Le Myre ‘threatened to leave if he did not obtain the Prince’s signatures; he actually went through the theatrical performance of keeping up steam on the board the Aspic and putting his baggage into the innards of that gunboat at the French Legation steps’: FO 881/6586, Scott to Rosebery, 28 January 1894, No. 44.
(35) Even Develle agreed that Le Myre de Vilers had conducted himself in a reprehensible manner throughout the negotiations. In personal letters Develle described Le Myre de Vilers as ‘an idiot who almost jeopardised everything’, remarked that Le Myre’s demands were ‘violent, brutal and excessive’, and complained that Le Myre’s draft treaties, ‘formulated in a pretty dishonest manner,…actually destroyed our text’: Les Archives de la Sarthe (ADS), Fonds Paul d’Estournelles de Constant, 12 J 119, Develle to d’Estournelles de Constant, 9 October 1893; MRE, MD Asie-Indochine 87, Develle to Paul Revoil, undated.
(37) FO 881/6479, Inclosure ‘Prince Devawongse to M. Le Myre de Vilers’ in Jones to Rosebery, 15 October 1893, No. 552. See also MAE, Siam 16, Enclosure No. 2 ‘Letter from Prince Devawongse to Le Myre de Vilers’, in Le Myre to Develle, 4 October 1893, No. 110. Rolin-Jaequemyns did not expect that the French would completely expunge Article III from the Convention, but had hoped to ‘obtain some attenuation, during the time which precede[d] the ratification of the treaty’: Tips, above n 10, 169 (journal entry for 2 October 1893).
(38) MAE, Siam 16, Le Myre to Develle, 4 October 1893, No. 110. Rolin-Jaequemyns confirmed that ‘de Vilers [had] not wanted to hear anything about our objections’: Tips, above n 10, 170 (journal entry for 3 October 1893).
(39) The full text of the Treaty, Convention, and proces-verbal are available at FO 881/6479, Inclosures No. 1–3 in Jones to Rosebery, 12 October 1893, No. 516, and on the website of the MAE at <https://pastel.diplomatie.gouv.fr/choiseul/> (accessed 14 May 2013).
(40) FO 881/6586, ‘Prince Devawongse to M. Pavie’, in Scott to Kimberley, 19 March 1894, No. 78.
(42) The Siam Free Press, whose editor and correspondents were partial to the French position, was no doubt conveying the thoughts of the French Representatives when it published the opinion that ‘[o]nly the most sanguine, obstinate, and deluded of persons could put any trust in an “International Court” or arbitration’: No. 78, above n 40, Inclosure No. 9 ‘Extract from Siam Free Press of 2 March 1894’. That the Siam Free Press was little more than a mouthpiece of the French legation is confirmed by an interview with M. Byrois, a correspondent with the Press, who in 1894 described M. Lillie (the editor of the his paper) as a ‘devoted friend of France’ and provided examples of instances in which Le Myre rewrote his articles to make them more ‘vigorous and aggressive’: FO 17/1221, ‘Extract from La Patrie’, in Dufferin to Rosebery, 15 April 1894, page 243, No. 148. See also FO 881/6586, Scott to Rosebery, 18 February 1894, No. 54.
(43) No. 78, above n 40. Scott felt that ‘[t]he refusal of the French Representatives to entertain the idea of a Mixed International Court forced the conclusion that from the beginning they had no intention of accepting the decision of the Siamese Court, and that finality of decision was the last thing they desired. The literal fulfilment of this suspicion still further dismays the Siamese’. Rolin-Jaequemyns, the primary author of the Royal Decree, initially conceived of a trial for Phra Yot before a Siamese court-martial, but for unknown reasons abandoned that idea in favour of a trial before a regular criminal court: Tips, above n 10, 164 (journal entry for 25 September 1893). See also No. 54, above n 42.
(45) The Siamese and English considered the Special Court to be more French than English. Devawongse felt that the Court applied ‘very nearly same law of France’ and Scott reported that the procedural rules were ‘very much more founded on French than on English forms of law, and is certainly not too favourable to the accused’: No. 54, above n 42; FO 17/1220, Prince Devawongse to Prince Svasti, 15 February 1894, 147. M Pavie, however, would later ascribe the (perceived) sluggishness of the proceedings as ‘entirely [due] to English procedure’: India Office Archives, MSS F278, George Scott’s Diary (11), entry for 28 February 1894, 24. The Siam Free Press derided the Siamese for binding the Special Court to a ‘mongrel procedure’: No. 78, above n 40, Inclosure No. 9 ‘Extract from the Siam Free Press of March 2, 1894’.
(46) Rule 16, 17, 22 of the Royal Decree Instituting a Special and Temporary Court for the trial of the affairs of Tong-Xieng-Kham and Keng-Chek (Kham-Muon), in Full Report, With Documentary Appendices, of the Phra Yot Trial Before the Special Court at Bangkok, Bangkok Times (Bangkok, 1894).
(51) John MacGregor, Through the Buffer State: A Record of Recent Travels Through Borneo, Siam, and Cambodia (London: F.V. White, 1896), 100.
(53) FO 17/1222, Acte d’Information, pages 95–6.
(57) MacGregor, Buffer State, above n 51. The accused was not the only smoker in court. One correspondent reported ‘the judges, counsel…witnesses, policemen, and spectators, all sit smoking cigarettes and cigars’. Apparently tea was ‘handed round occasionally’ as well: ‘A Trial in Siam’, Lancaster Gazette (Lancaster, England) 14 April 1894.
(58) No. 78, above n 40. Scott also reported that Ducos dismissed the Special Court as a ‘useless formality’ and a ‘farcical waste’ to the Siam Free Press: No. 78, above n 40. See also No. 54, above n 42.
(61) No. 54, above n 42. In letters to Siam’s plenipotentiary in Europe, Devawongse purported to have ‘consulted the French minister on every step: as to how the Court shall be constituted, and as to who shall be the judges of the court’: FO 17/1220, Prince Devawongse to Prince Svasti, 1 March 1894, 41. See also Prince Devawongse to Prince Svasti, 15 February 1894, above n 45, wherein Prince Devawongse explained that the President of the Court would be ‘Prince Bichit, with the regulations for the proceeding which [the French Minister] agreed’. Despite his involvement, Pavie ‘refused to recognise the Tribunal’: ‘Colonial Affairs’, Le Temps (Paris, France) 17 April 1894. Pavie also reneged on a promise that he would provide the Siamese with a ‘description of the charges’ that should be brought against Phra Yot, and delayed the start date of the proceedings by failing to act on Siam’s pre-trial requests for evidence in a timely manner: Prince Devawongse to Prince Svasti, 1 March 1894, above n 61. See generally Prince Bidyalath to Prince Svasti, above n 42; FO 17/1220, Scott to Rosebery, 26 February 1894, No. 61.
(75) ‘The Trouble in Siam’, Ashburton Guardian (Ashburton, New Zealand) 22 March 1894; ‘Phra Yot’s Case’, Daily Advertiser (Singapore) 20 June 1894; ‘The Phra Yot Trial’, Daily Advertiser, 4 April 1894 (Singapore) Page 3. According to Henry Norman, an English journalist, ‘[Prince Bijit’s] special talents made him the only possible man to occupy the very difficult post of Presiding Judge at the recent State Trial of Pra Yot [sic]. Throughout the prolonged proceedings his conduct was such as to win him the highest praise from all the Europeans who were present’: Henry Norman, The Peoples and Politics of the Far East: Travels and Studies in the British, French, Spanish and Portuguese Colonies, Siberia, China, Japan, Korea, Siam and Malaya (London: T. Fischer Unwin, 1895), 450.
(76) FO 881/6586, Inclosure ‘Extracts from the Matin of 18 and 19 March 1894’, in Phipps to Rosebery, 19 March 1894, No. 53. See also FO 881/6586, Inclosure ‘Extracts of the Éclair of 3 April 1894’, in Marquis of Dufferin to Kimberley, 2 April 1894, No. 58. One French correspondent suggested that the Special Court had made Phra Yot out to be a ‘great patriot’ as part of a Siamese scheme to lay ‘an indictment for persecution and barbarism against France, incite hatred of the French name and place Siam under the protection of the British Lion’: FO 881/6586, Inclosure No. 10 ‘Extract from the Courrier d’Haiphong of 17 March 1894’, in No. 78, above n 40.
(78) No. 58, above n 76. This same official stated that since ‘[i]t would be unwise to count on absolute justice in political or international matters even in our own country, we can therefore imagine what this kind of justice means in the mind of a Siamese’.
(79) Although the Constitution of the Mixed Court confirms that ‘slight alterations’ to (France’s) initial draft of the Rules of procedure were made by ‘mutual consent’, there are no documents in the French, Belgian or English archives that show which party had input into which rules. ‘First Part—Constitution of the Mixed Court—Rules of Procedure’ in The Case of Kieng Chek Kham Muon Before the Franco-Siamese Mixed Court—Constitution of the Mixed Court and Rules of Procedure—The Trial, Judgment and Condemnation of Phra Yot (June 1894)
<http://www.archive.org/details/caseofkiengchekk00franrich> (accessed 3 March 2013).
(80) ‘First Part—Constitution of the Mixed Court—Rules of Procedure’ in Franco-Siamese Mixed Court, above n 79, rules 2 and 8. Interestingly, only the President was granted the authority to ‘obtain all information…necessary to discover the truth’: ‘First Part—Constitution of the Mixed Court—Rules of Procedure’ in Franco-Siamese Mixed Court, rule 9.
(81) ‘First Part—Constitution of the Mixed Court—Rules of Procedure’ in Franco-Siamese Mixed Court, above n 79, rules 1–4 and 8. The accused retained his Cingelese attorney from the national proceedings, Mr Tilleke, in addition to the French-speaking M. Duval of Saigon.
(82) Crimes were listed in Articles 1, 2, 6, 8 and 10. Assassination was defined as ‘murder committed with premeditation or through ambush’: ‘First Part—Constitution of the Mixed Court—Rules of Procedure’ in Franco-Siamese Mixed Court, above n 79, Article 2. Although the Rules did not explicitly provide for principal liability, the applicability of this mode of liability may be inferred from Article 4: ‘Accomplices of a crime or an offence shall incur the same punishment as the authors of such a crime or offence, except when the law will have disposed otherwise.’ Article 5, which defined the scope of accomplice liability, is noteworthy for its comprehensiveness:
[Individuals who] [s]hall be punished as accomplices of an action termed crime of offence:
Those who by gifts, promises, menaces, abuse of authority or power, culpable machinations or artifice, shall have provoked such an action.
Those who shall have procured arms, instruments or any other means employed to commit the action, knowing that they were to be employed to commit it.
Those who knowingly shall have aided or abetted the author or authors of the action, in the facts which led up to, or facilitated or prepared it, or those that completed it.
(85) FO 881/6628, Scott to Kimberley, 25 June 1894, No. 46 (describing the trial as ‘stagey and melodramatic in the extreme’). Gustave Rolin-Jaequemyns, James G. Scott and various Siamese Ministers attended the trial. See generally Walter E.J. Tips, Gustave Rolin-Jaequemyns and the Making of Modern Siam: The Diaries and Letters of King Chulalongkorn’s General Adviser (Bangkok: White Lotus, 1996), 69; Scott Diary, above n 45, 62 (journal entry for 4 June 1894). Rolin-Jaequemyns encouraged King Chulalongkorn not to attend, arguing that ‘[w]hatever may be the final result, the fact of a Siamese subject being tried by foreign judges, is in itself a sad and unfortunate event and it is better that the King’s presence should be kept as far as possible from it’: Tips, Gustave Rolin-Jaequemyns, 70.
(86) The Court read into evidence Phra Yot’s letters to Captain Luce and Luang Vichit, as well as Boon Chan’s testimony before the Special Court read into evidence, Boon Chan having died in the interim between trials: ‘Second Part—Second Sitting’ in Franco-Siamese Mixed Court, above n 79, 17. The Court spent only a little over an hour examining all six defence witnesses: ‘Second Part—Third Sitting’ in Franco-Siamese Mixed Court, above n 79, 18–22.
(87) ‘Second Part—First Sitting’ in Franco-Siamese Mixed Court, above n 79, 9–13. The President adopted a decidedly more conciliatory tone with the prosecution’s sole witness, Nguen van Khan: ‘Second Part—Second Sitting’ in Franco-Siamese Mixed Court, above n 79, 14–16.
(88) ‘Third Part—Judgment’ in Franco-Siamese Mixed Court, above n 79, 37–8. Le Temps suggested that the vote of the Siamese judges could be explained by the fact that the judges were of the same caste with the accused: ‘Siam’, Le Temps (Paris, France) 28 July 1894.
(89) ‘Third Part—Judgment’ in Franco-Siamese Mixed Court, above n 79, 36–7. These paragraphs reflect the entirety of the Mixed Court’s determination of liability, the remainder of the opinion being devoted to a description of the facts of the Affair.
(94) See Letter of 6 June 1894 from Prince Damrong to Rolin-Jaequemyns in Tips, Gustave Rolin-Jaequemyns, above n 85, 70 (in which Damrong writes of his feeling that Phra Yot’s fate ‘has been decided before [the trial]. The verdict has been guilty.’).
(95) FO 17/1222, Scott to Kimberley, 10 June 1894, No. 37. See also FO 881/6586, Scott to Kimberly, 10 June 1894, No. 99.
(96) Damrong wrote to Rolin-Jaequemyns ‘the news which reached me today that they want to take [Phra Yot] away from his native land is too much to bear. I quite agree with the attitude taken by my brother [Prince Devawongse]. There is really no other alternative, in my judgement, but to make a stand and take the consequences’: Letter of 15 June 1894 from Prince Damrong to Rolin-Jaequemyns, in Tips, Gustave Rolin-Jaequemyns, above n 85, 70.
(97) FO 881/6628, Inclosure No. 7 ‘Prince Devawongse to M. Pilinski’, in Scott to Kimberley, 18 June 1894, No. 27. Devawongse threatened to resign rather than hand over the former Commissioner, and King Chulalongkorn was prepared to resist the French on this point, even if it cost him the throne: No. 46, above n 85; FO 881/6586, Scott to Kimberley, 16 June 1894, No. 106.
(98) No. 46, above n 85. See also FO 881/6586, Inclosure ‘Memorandum’, in Marquis of Dufferin to Kimberley, 22 June 1894, No. 112. King Chulalongkorn, with the permission of the French, pardoned Phra Yot in 1898: Tips, above n 85, 133. Phra Yot has been memorialized with a statue in the Nakhom Phanom province of Thailand, an exhibit related to his case in the Court Museum in Bangkok and through the play ‘Pra Yod [sic] of Muang Kwang’ by Sompop Chandraprabha.
(99) See William J. Ronan, ‘English and American Courts and the Definition of War’, American Journal of International Law, 31 (1937), 649.
(100) FO 881/6749, Inclosure No. 3 ‘Notification of Blockade, dated 29 July 1893’, in Admiralty to Foreign Office, 8 September 1893, No. 394. Louis Dartige Du Fournet, Commander of the Comète (one of two French ships to have exchanged fire with Siamese ground forces in July 1893 in what would come to be known as the Paknam Incident) repeatedly suggested that France and Siam were not in a state of war: Louis Dartige du Fournet, Journal d’un Commandant de La Comète: China-Siam-Japon (1892–1893) (Plon, 1915) 234, 237, 249 (journal entries for 20 July 1893, 25 July 1893 and 3 August 1893).
(101) MAE, Siam 16, Enclosure No. 1 ‘Note Verbal’ summarizing 2 June 1893 meeting between Devawongse and Pavie, in Dispatch from Bangkok, 25 June 1893, No. 109 (in which Devawongse inquires of Pavie whether Siam’s capture of France’s Captain Thoreux was a lawful response to an act of war on the part of France); Tips, Siam’s Struggle, above n 10, 91 (journal entry for 14 July 1893) (in which Rolin-Jaequemyns describes how he explained to the King that the two French gunboats that had been sent to Bangkok in response to the Affair would abstain from attacking Siam as the two countries were not officially at war).
(102) See Cushing, Adm. v United States, 22 Ct. Cl. 1 (USA, 1886). See also French Spoilation Claims: Message from the President of the United States Transmitting a Communication from the Secretary of State, Accompanied by a Report of Somerville P. Tuck, in Relation to French Spoilation Claims (Govt. Print. Off. 1888), 12.
(103) See eg, Janson v Driefontein Consolidated Mines, Ltd.  AC 484 (‘However critical may be the condition of affairs…so long as the government of the State abstains from declaring or making war or accepting a hostile challenge, there is peace.’); Gray, Adm. v United States, 21 Ct. Cl., 340 (USA, 1886) (Finding that a state of war did not exist between France and the United States where ‘[t]here was no declaration of war; the tribunals of each country were open to the other—an impossibility were war in progress;…there were retaliation and reprisal, but such…have often occurred between nations at peace; there was a near approach to war, but at no time was one of the nations turned into an enemy of the other in such a manner that every citizen of the one became the enemy of every citizen of the other’); Cushing, Adm. v United States, 22 Ct. Cl. 1 (USA, 1886) (Holding that ‘Congress did not consider war as existing, for every aggressive statute looked to the possibility of war in the future, making no provision for war in the present, and France, our supposed enemy, absolutely denied the existence of war.’); Bishop v Jones & Petty, 28 Tex. 294 (1886) (in which the Supreme Court of Texas held that ‘[h]ostile attacks and armed invasions of territory or jurisdiction of a nation, accompanied by the destruction of life and property by officers acting under the sanction and authority of their governments, however great and flagrant provocations to war, are often atoned for and adjusted without its ensuing.’).
(104) In fact, the substantive law applied by the Court was based on French law. A comparison between, for example, the definition of the crime of assassination found in Article 2 of the Rules of the Court and analogous definitions in Article 296 of the French Code pénal de 1810, Article 101 of the Lieber Code (1863), Article 13 of the Brussels Declaration (1874) and Article 8 of the Oxford Manual (1880) establishes that this portion of the text was inspired by the French statute, as opposed to the more expansive and comprehensive articulations of the crime found in the pre-existing codifications of the jus in bello. The definition of the crime of arson that appears in Article 11 of the Rules is similar to Article 434 of the Code pénal, though it appears to have been modified to fit the particulars of the crime Phra Yot was accused of perpetrating (ie, house-burning).
(105) The trial record reflects that the Siamese judges participated only twice in the day-to-day proceedings of the trial, at one point attempting to clarify the meaning of some physical evidence for the Accused, and later to question a witness. ‘Second Part—First Sitting’ in Franco-Siamese Mixed Court, above n 79, 13; ‘Second Part—Second Sitting’ in Franco-Siamese Mixed Court, above n 79, 17. Ultimately, however, the minority status and nominal participation of the Siamese judges erodes but does not extirpate the Court’s veneer of supranationality.
(106) For example, the Einsatzgruppen court justified the existence of the Nuremberg Military Tribunals as a valid exercise of pooled jurisdiction, explaining that ‘if a single national may legally take jurisdiction in such instances, with what more reason may a number of nations agree, in the interests of justice, to try alleged violations of the laws of war’. US v Ohlendorf et al (‘Einsatzgruppen Case’), reprinted in IV Trial of War Criminals before Nuremberg Military Tribunals Under Control Council Law No. 10 (US GPO, 1951), at 492.
(107) Peter Zinoman , The Colonial Bastille: A History of Imprisonment in Vietnam, 1862–1940 (Berkeley, CA: University of California Press, 2001), 40.
(108) Code d’instruction criminelle de 1808 (France), Article 268.
(109) William D. Popkin, Evolution of the Judicial Opinion: Institutional and Individual Styles (New York, NY: NYU Press, 2007), 38.
(110) ‘First Part—Constitution of the Mixed Court—Rules of Procedure’, above n 79, rule 1; Code, above n 108, Article 184. Moreover, as the factual record was well developed at the first trial, the judges, Plenipotentiaries and parties may simply have assumed that additional time to prepare was unlikely to result in the discovery of additional evidence.
(113) See for example United States v Plenty Horses (1891), in which the existence of a state of war between the Lakota Nation and the United States was contentiously debated: Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge: Cambridge University Press, 2010), 30 .
(116) No. 27, above n 97. The trial transcript confirms that the President disparaged at least one defence witness; as Honiu Visot took the stand, the President remarked that he ‘did not appear [to be] very intelligent’: ‘Second Part—Third Sitting’ in Franco-Siamese Mixed Court, above n 79, 21. There may have been similar incidents that simply went unrecorded, as there is some indication that the transciptionist or publisher may have elected, for reasons of their own, to provide a less than complete picture of the trial. For example, during his closing arguments defence counsel M. Duval responded to the President’s (alleged) insinuation offered ‘in the course of [the] debates’ that defence witnesses were ‘repeating a lesson learnt by heart’, yet the President is nowhere recorded as having made any such insinuation: ‘Second Part—Fourth Sitting’ in Franco-Siamese Mixed Court, above n 79, 29.
(117) United National, Draft Convention for the Establishment of a United Nations War Crimes Court (30 September 1944) Article 15, reprinted in Historical Survey of the Question of International Criminal Jurisdiction, UN Doc. A/CN.4/7/Rev. 1 (1949), 112.
Gustave Moyneir’s 1872 proposal for an international criminal court afforded broad discretion to individual trial panels in determining the rules of procedure they would apply: Christopher Hall, ‘The first proposal for a permanent international criminal court’, International Review of the Red Cross, 322 (1998), 57. The treaties establishing the nineteenth-century anti-slavery ‘mixed courts of justice’, which lacked criminal jurisdiction over the crews of slave vessels but had the authority to remit crewmembers to their home country to face domestic criminal proceedings, did not provide procedural protections for the crews of seized ships, but did require that judges and arbiters take an oath to judge fairly and with impartiality. See eg Treaty Between the United States of America and Great Britain, for the Abolition of the African Slave Trade, signed 7 April 1863, 12 Stat 1125 (entered into force 25 May 1862). See also Jenny Martinez, ‘Anti-Slavery Courts and the Dawn of International Human Rights Law’, Yale Law Journal, 117 (2008), 591.
In January 1919 the British Committee of Inquiry into the Breaches of the Laws of War called for the creation of an international tribunal to try ‘enemy persons alleged to have been guilty of offences against the laws and customs of war’. Although the British proposal established minimum procedural protections to which the accused would be entitled, the Allies, acting through the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, however, eventually agreed only to suggest the creation of an international tribunal authorized to ‘determine its own [rules of] procedure’: CAB 24/72, First Interim Report from the Committee of Inquiry into the Breaches of the Laws of War, 13 January 1919, 16. ‘Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties’, American Journal of International Law, 14 (1920), 122.
(118) Robert Cryer,Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge: Cambridge University Press, 2005), 19.
(120) See ‘Third Part—Judgment’ in Franco-Siamese Mixed Court, above n 79, 37. Von Hagenbach was tried before twenty-eight judges representing different political entities (principally city states) in the Upper Rhine. These political entities were not ‘states’ in the Westphalian sense and their relationship with the Holy Roman Empire (and by extension their status and the status of the von Hagenbach court in international law) is contested: see Timothy McCormack, From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime in Timothy L.H. McCormack and Gerry J. Simpson(eds), The Law of War Crimes: National and International Approaches (Boston, MA and Leiden: Martinus Nijhoff, 1997), 38; George Schwarzenberger, International Law as Applied in International Courts and Tribunals (London: Stevens & Sons, 1968), 466.
(121) The Rules of the Court blended these two modes of liability by providing for command responsibility only to the extent that an individual who ‘abused authority or power’ qualified as an accomplice to a crime: ‘Second Part—First Sitting’ in Franco-Siamese Mixed Court, above n 79, 9; ‘First Part’ in Franco-Siamese Mixed Court, above n 79, Article 5.
(122) The judges did not clarify whether it was Phra Yot’s desire to follow the Commissioner’s orders or his goal of ejecting the French soldiers from Kham Muon that warranted mitigation. For an example of a contemporary international court adopting a similar approach to mitigating circumstances and sentencing, see International Criminal Court R.P. & Evid. Rule 145 (instructing the Chambers of the International Criminal Court to account for inter alia ‘the degree of participation of the convicted person’ and ‘the degree of intent’ during sentencing).
(123) None of the proposals for the creation of international tribunals that followed WWI and WWII so much as mentioned the Franco-Siamese Mixed Court. See generally Historical Survey, above n 117; ‘Commission on the Responsibility of the Authors of the War’ above n 117; Committee of Inquiry, above n 117.
(124) R. John Pritchard, International Humanitarian Intervention and Establishment of an International Jurisdiction over Crimes against Humanity: the National and International Military Trials in Crete in 1898 in John Carey, Willian V. Dunlap, R. John Pritchard (eds), International Humanitarian Law: Origins, Challenges, Prospects (Ardsley, NY: Transnational Publishers, Inc. 2003) 80–1.
(125) ‘The Massacres in China’ Sydney Morning Herald (Sydney, Australia), 7 August 1895 (in which an anonymous European resident in Foochow called for the chief officials of the province to ‘be brought to formal trial before a mixed tribunal, as was the case with Phra Yot…Let these men be tried in the some way, before a tribunal in which representatives of China, Great Britain, France, and the United States sit as Judges. If guilt cannot be brought home, well and good, but if it be shown that they instigated the riots…let sentence be passed upon them adequate to their offence’.).
(126) Jacques Dumas, ‘La Responabilite des Etats a raison des crimes et des Delits commis sur leur territoire au prejudice d’etrangers’, Receuil des Cours, 36 (1931), 200.