THE EXPLOSION AND THE TESTIMONY: THE WWI SABOTAGE
CLAIMS AND AN INTERNATIONAL ARBITRAL TRIBUNAL’S
POWER TO REVISE ITS OWN AWARDS
Timothy G. Nelson
On Christmas Day, 1930, Paul Hilken, a German-born shipping executive,
searched his Baltimore home one more time for proof of his role as paymaster for
German sabotage operations in America during World War I,1 a career that
involved financing the destruction of the “Black Tom” munitions depot at Jersey
City, New Jersey, in July 1916.2 Only six weeks previously, an international arbitral
tribunal had lambasted his testimony on the issue, branding him and another
confessed saboteur, Fred Herrmann, as “liars, not presumptive but proven.”3 Hilken
“desperately wanted vindication.”4 Then he found that magazine.
The magazine in question was a January 1917 issue of Blue Book, a monthly
compilation of feature articles, once popular on long train trips or voyages.
Concealed within Hilken’s copy was a message by fellow spy Fred Herrmann,
written in a combination of invisible ink (using lemon juice) and coded pinpricks.
The Herrmann message referred to the past attack on the “Jersey City Terminal”
(i.e., the Black Tom depot) and requested $25,000 to help finance another attack.5
Hilken had retrieved the message in 1917 by rubbing the page with a hot iron, and
in 1930, the text “could still be clearly read.”6 Hilken took the freshly discovered
Blue Book magazine to the American team responsible for the arbitral claim
against Germany. “[A]mazed and ecstatic,” they used it as their prime exhibit to
reopen the case.7
B.A. L.L.B. (University of New South Wales), B.C.L. (University of Oxford).
Partner in the International Litigation and Arbitration Group of Skadden, Arps, Slate,
Meagher & Flom LLP, New York. The views expressed herein are solely those of the
author and are not those of his firm or the firm’s clients. Portions of Sections II and V
reflect case research by Jose Torres (formerly of Skadden London) and Sahib Singh
(formerly of Skadden Vienna), and the author gratefully thanks these colleagues.
1
JULES WITCOVER, SABOTAGE AT BLACK TOM: IMPERIAL GERMANY’S SECRET WAR
IN AMERICA, 1914-1917, at 282 (1989); CHAD MILLMAN, THE DETONATORS: THE SECRET
PLOT TO DESTROY AMERICA AND AN EPIC HUNT FOR JUSTICE 196 (2006) [hereinafter THE
DETONATORS].
2
See WITCOVER, supra note 1, at 164-65, 278-79.
3
Lehigh Valley R.R. v. Germany, 8 R.I.A.A. 84, 86 (Mixed Claims Comm’n 1930)
[hereinafter Sabotage Claims (1930 Decision)].
4
THE DETONATORS, supra note 1, at 196.
5
WITCOVER, supra note 1, at 236-38; THE DETONATORS, supra note 1, at 196, 199-200.
6
WITCOVER, supra note 1, at 283.
7
Id.; see also THE DETONATORS, supra note 1, at 204-05, 207.
The American Review of International Arbitration (ARIA), v23/no2, 197-230, copyright 2012 ©JurisNet, LLC
198
THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION
[Vol. 23
What followed was a milestone in arbitral history. By its 1933 decision in
what were known as the Sabotage Claims, the German-U.S. Mixed Claims
Commission held that it had “inherent power to reopen” a case based on newly
presented evidence.8 In 1939, it vacated its earlier findings, adjudging Germany
liable for acts of wartime sabotage in the United States, and awarding
approximately $31,400,000 damages (around $500,000,000 in today’s terms).9
The Sabotage Claims remain, to this day, the leading example of an
international arbitral tribunal reopening a prior award based on new evidence. But
in many respects they remain unique, both in terms of the tribunal’s particular
procedures, as well as the quirks of the case itself. Indeed, there has yet to be a
“repeat performance” of a major international award being revised based on newly
discovered facts. This article examines the Sabotage Claims and subsequent
jurisprudence on the “revision” of international arbitral awards.
I. THE CONCEPT OF “REVISION” OF ARBITRAL AWARDS
A near-universal principle of adjudication (in both international and domestic
cases) is that of res judicata, that once a dispute is definitively determined by a
competent tribunal, it cannot be revisited in subsequent litigation.10 This principle
of finality or res judicata has long been viewed as applying to public international
law arbitration.11
8
Lehigh Valley R.R. v. Germany, 8 R.I.A.A. 160, 190 (Mixed Claims Comm’n
1933) [hereinafter Sabotage Claims (1933 Decision)].
9
Agency of Canadian Car & Foundry Co. v. Germany, 8 R.I.A.A. 460, 468 (Mixed
Claims Comm’n 1939); see also Lehigh Valley R.R. v. Germany, 8 R.I.A.A. 225, 458-60
(Mixed Claims Comm’n 1939) [hereinafter Sabotage Claims (1939 Decision)].
10
BIN CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL COURTS
AND TRIBUNALS 336 (1953) (“There seems little, if indeed any question as to res judicata
being a general principle of law or to its applicability in international judicial
proceedings”); Polish Postal Service in Danzig, Advisory Opinion, 1925 P.C.I.J. (Ser. B)
No. 11, at 30 (May 16) (“[T]he doctrine of res judicata [applies when] not only the Parties
but also the matter in dispute [are] the same”). Under a related doctrine, “issue estoppel,”
a party may be barred from “re-opening . . . issues already determined by [an] earlier
tribunal.” Vaughan Lowe, Res Judicata and the Rule of Law in International Arbitration,
8 AFR. J. INT’L COMP. L. 38, 41 (1996).
11
Pious Fund (U.S. v. Mex.), 9 R.I.A.A. 1, 5-6 (Perm. Ct. Arb. 1902) (claim
espoused on behalf of American clerics was precluded by res judicata because the same
claims had been adjudicated some years previously by a British arbitrator); Arbitral
Award Made by the King of Spain on December 23, 1906 (Hond. v. Nicar.), Judgment,
1960 I.C.J. 192, 213 (Nov. 18) (once valid award issued, “it [was] no longer open to
Nicaragua to go back upon that recognition and to challenge the validity of the Award”);
Trail Smelter (U.S. v. Can.), 3 R.I.A.A. 1905, 1950 (Mixed Claims Comm’n 1938, 1941)
(res judicata is an “essential and settled rule of international law”); see also Société
Commerciale de Belgique (Belg. v. Greece), Judgment, 1939 P.C.I.J. (Ser. A/B) No. 78, at
175 (June 15) (“[T]he terms of [an] award are definitive and obligatory”).
2012]
THE EXPLOSION AND THE TESTIMONY: THE WWI SABOTAGE CLAIMS
199
From time immemorial, however, tribunals had struggled over how to handle
new evidentiary discoveries post-dating a final award.12 The 1899 Hague
Convention on Pacific Settlement of International Disputes provided for final and
binding awards by a Permanent Court of Arbitration, subject to the parties’ ability
to “reserve” by agreement “the right to demand the revision of the Award” based
on newly discovered evidence of decisive importance.13 The Statute of the
Permanent Court of International Justice, while providing that judgments would
be “final and without appeal,”14 allowed “revision” of such judgments
only . . . based upon the discovery of some fact of such a nature as to be a
decisive factor, which fact was, when the judgment was given, unknown to the
Court and also to the party claiming revision, always provided that such
15
ignorance was not due to negligence.
In inserting an “improvement” to ensure that the non-discovery of the fact
must not be due to “negligence,” the PCIJ drafting committee recognized that,
however “important” the right of “revision” may be, it “affects adversely in the
matter of res judicata, a point which for the sake of international peace should be
considered as finally settled.”16
Although the PCIJ never heard a revision application,17 the issue was
addressed by some of the post-Versailles “Mixed Arbitral Tribunals” formed to
12
See Andreas Zimmermann & Robin Geiss, Article 61, in THE STATUTE OF THE
INTERNATIONAL COURT OF JUSTICE: A COMMENTARY 1299, 1301 n.3 (Andreas
Zimmermann et al. eds., 2006) (noting some authors have traced this issue back to
revision proceedings with regard to a legal dispute between Carthage and Massena). As to
the 19th Century, compare Moore v. Mexico, No. 701 (Mixed Claims Comm’n 1871)
(motion to revise award “grant[ed]” if there was “evidence . . . of a certain and conclusive
character, such as ought undoubtedly to produce a change in the minds of the
commissioners,” except upon a showing of “gross laches” on the movant’s part or other
injustice), as reprinted in 2 JOHN BASSETT MOORE, HISTORY AND DIGEST OF THE
INTERNATIONAL ARBITRATIONS TO WHICH THE U.S. HAS BEEN A PARTY 1357 (1898), with
Weil & La Abra Silver Mining Co. Cases (U.S. v. Mex.), Nos. 447, 489 (Mixed Claims
Comm’n 1876) (commission barred from reopening an award despite “evidence which, if not
refuted by the claimant, would certainly contribute to the suspicion that perjury has been
committed and that the whole claim is a fraud”), as reprinted in 2 MOORE, supra, at 1329.
13
Convention for the Pacific Settlement of International Disputes, Art. 55, July 29,
1899; see also Convention for the Pacific Settlement of International Disputes, Art. 83,
Oct. 18, 1907 (similar provision).
14
Statute of the Permanent Court of International Justice, Art. 60, Dec. 16, 1920.
15
Id. Art. 61.
16
Permanent Court of International Justice, Advisory Committee of Jurists, ProcèsVerbaux of the Proceedings of the Committee 744 (June 16-July 24, 1920), available at
http://www.icj-cij.org/pcij/serie_D/D_proceedings_of_committee_annexes_16june_24july
_1920.pdf.
17
The PCIJ did allude to revision twice. In the Monastery of Saint-Naoum advisory
opinion, addressing the status of post-WWI boundary delimitation previously
accomplished by a Conference of Ambassadors, the PCIJ stressed the “definitive
200
THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION
[Vol. 23
hear damages claims against Germany and its former allies.18 “[P]ractically
every” one of the Versailles tribunals had rules of procedure that “consider[ed]
after-discovered or newly discovered evidence as a ground for revising a
judgment.”19 Case law quickly established that “revision” is not an “appeal.”20 In
the Battus case, the France-Bulgaria Mixed Arbitral Tribunal declined to revise a
1925 award in favor of a French subject who suffered damage to a forestry
investment, even after a 1926 French court decision cast doubt on the claimant’s
title to the investment. It held, under its statute, that (1) a revision application had
to be brought within nine months of the award; and (2) the supposedly “decisive”
new fact needed to have been in existence at the time of the original decision
(which was not the case here, because the appellate judgment only arose in 1926).
Overall, it “[could not] be rigorous enough in its analysis before honouring a
request aimed at nothing less than reopening discussions about issues which have
character” of the Conference decision precluded a belated challenge based on supposed
errors, but left open the possibility that it might “be revised” based on “new facts being
relied on.” Monastery of Saint-Naoum, Advisory Opinion, 1924 P.C.I.J. (Ser. B) No. 9, at
21-22 (Sept. 4). But in another delimitation case, the PCIJ remarked that “in the absence
of an express agreement between the parties, the Arbitrator [was] not competent to
interpret, still less modify his award by revising it.” Question of Jaworzina (PolishCzechoslovakian Frontier), Advisory Opinion, 1923 P.C.I.J. (Ser. B) No. 8, at 38 (Dec. 6).
18
See Treaty of Peace Between the Allied and Associated Powers and Germany
(Treaty of Versailles), Art. 304, June 28, 1919 (framework for Mixed Arbitral Tribunals);
Treaty of Peace Between the Allied and Associated Powers and Austria (Treaty of St.
Germain-en-Laye), Art. 256, Sept. 10, 1919 (same); Treaty of Peace Between the Allied
and Associated Powers and Hungary and Protocol and Declaration (Treaty of Trianon),
Art. 239, June 4, 1920 (same); Treaty of Peace with Turkey (Treaty of Lausanne), Arts.
92-98, July 24, 1923 (similar arrangements).
19
CHENG, supra note 10, at 364; see also id. n.99 (surveying the various revision
procedures as established in the Rules of Procedure of the post-war Franco-German,
Belgo-German, British-Austrian, Czech-German, Italo-German, Rumanian-German,
Franco-Turkish, and Greek-Turkish Mixed Arbitral Tribunals).
20
See De Neuflize Case (Fr. v. Germ.), 7 Trib. Arb. Mixtes 629, 632-33 (Mixed
Arbitral Trib. 1927) (original French text) (“[R]evision . . . should not be confused with,
or assimilated to, appeal or cassation. . . . [R]evision does not depend . . . on whether the
case has been well or ill decided, nor on criticisms directed against a certain construction
of the law or on differences of opinion concerning the appraisal of facts, or even on a
combination of both those considerations. . . . there can be no question of examining, in
the matter of revision, whether or not the Tribunal has correctly or incorrectly interpreted a
given set of facts; this constitutes precisely the task of an appellate judge and appeal does
not exist as it concerns the jurisdiction of a Mixed Arbitral Tribunal”) (translation by author);
accord Ventense Case (Yugoslavia v. Germ.), 7 Trib. Arb. Mixtes 79, 82-83 (Mixed Arbitral
Trib. 1923) (original French text) (revision is strictly limited to the statutory criteria); Heim
v. Germany, 3 Trib. Arb. Mixtes 50, 54 (Mixed Arbitral Trib. 1922) (original French text)
(Treaty of Versailles created revision in order to cover the factual “risks” inherent in
dealing with “often old” facts and the “troubled circumstances” of the disputes; it was not
intended to provide, directly or indirectly, “a second trial”) (translation by author).
2012]
THE EXPLOSION AND THE TESTIMONY: THE WWI SABOTAGE CLAIMS
201
already been finally decided,” because revision, if granted too liberally, would
undermine res judicata.21
II. THE SABOTAGE CASES
A. The July 1916 Explosion at the Black Tom Munitions Depot
In the morning of Sunday, July 30, 1916, the Black Tom munitions depot in
Jersey City – then storing 1,000 tons of munitions, including significant quantities
of dynamite, nitro-cellulose and shrapnel shells – exploded.22 A “blast of
gargantuan dimensions” shook “western Long Island, northern New Jersey, and
even Philadelphia” and led “[e]very building in New York” to “shudder[] on its
foundations.”23 Several depot employees died, as did a baby sleeping in a nearby
apartment;24 hundreds were injured.25 Millions of dollars of property damage
resulted, much of it incurred by the Lehigh Valley Railroad, the owner/operator of
the munitions depot.26
History records that the blast was deliberately caused by German agents using
incendiary tubes loaded with detonators. The espionage ring was established at
the behest of the German General Staff at the inception of World War I in 1914,
and was secretly overseen by the German Embassy in Washington,27 including
Franz von Papen (the military attaché), Karl Boy-Ed (the naval attaché) and
Heinrich Albert (the commercial attaché).28 Although operations were initially
directed against Canada (a belligerent party since 1914), the campaign
broadened to U.S. soil on the basis that, despite America being a neutral party, its
factories were contributing to the Allied war effort.29 Between 1914 and 1916,
there took place 50 attacks on U.S. businesses; the “overwhelming majority”
21
Battus v. Bulgaria, 9 Trib. Arb. Mixtes 284, 285 (Mixed Arbitral Trib. 1929)
(original French text) (“Att. que le Tribunal ne saurait se montrer trop rigoureux dans cet
examen avant d’accueillir une demande qui ne tend rien de moins qu’à remettre en
discussion des questions définitivement jugées”).
22
Harland Manchester, The Black Tom Case, HARPER’S, Dec. 1939, at 60; see also
WITCOVER, supra note 1, at 11.
23
Manchester, supra note 22, at 60; see also THE DETONATORS, supra note 1, at 90-92.
24
WITCOVER, supra note 1, at 12; THE DETONATORS, supra note 1, at 94.
25
WITCOVER, supra note 1, at 20-21.
26
Id. at 21.
27
See id. at 41.
28
Id. at 56; see also THE DETONATORS, supra note 1, at 14. Like the proverbial bad
coin, von Papen later turned up at other points in history. He was Hitler’s predecessor,
serving as German Chancellor between 1932 and 1933; he was German Ambassador to
Austria shortly before the Anschluss of 1938, and he was German ambassador to Turkey
in World War II and allegedly connected to the “Cicero” spy operation featured in the film
Five Fingers.
29
WITCOVER, supra note 1, at 59-69; see also THE DETONATORS, supra note 1, at 1-35,
41-90.
202
THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION
[Vol. 23
against “factories making munitions or their chemical or metal components.”30
Although these attacks were later tied to the spy ring, the connection was not
apparent to officials at the time. Officials initially believed the Black Tom
explosion was an industrial accident – indeed, manslaughter charges were brought
against depot managers.31 A related theory, later embraced by the German agent
in the Sabotage Claims, was that it was caused by depot workers setting a fire to
repel local mosquitoes.32
B. The January 1917 Fire at Kingsland Foundry
On January 11, 1917 – a time when the United States was still neutral – the
Kingsland munitions foundry in northern New Jersey “soared skyward” in a huge
fire:
This factory, composed of thirty-eight low frame buildings, lay in the Jersey
meadows seven miles west of the Hudson. The operators, Agency of Canadian
Car and Foundry Company, Ltd., a New York corporation, were just completing
a bothersome order of $83,000,000 worth of three-inch shells for the Russian
government, and the afternoon shift was working full blast. In Building 30 a
dozen men were cleaning brass shell cases with denatured alcohol. One of the
alcohol pans burst into flames, and the workmen fled, fire biting at their heels. In
no time at all the flames jumped to eight carloads of T.N.T. on the siding, over
the tracks to a warehouse packed with 55,000 shells, and then to a trainload of
ammunition on the Lackawanna tracks. The fusillade lasted four hours and
33
consumed 500,000 artillery shells. Amazingly, no one was killed.
Suspicion initially fell on Theodore Wozniak, a plant employee (and Austrian
national) who had been seen near the source of the fire.34 Wozniak, however,
quickly slipped away from the tri-state area and was not heard from again for over
a decade.35
By this stage, the one German activity that had done tangible damage to U.S.
nationals was its submarine warfare, symbolized by the sinking off Ireland of the
British liner Lusitania in May 1915. Although this had greatly alienated
American public opinion,36 the American declaration of war was actually
provoked by the sensational revelation that Germany had been secretly attempting
to negotiate an alliance with Mexico, in which the latter might regain former lost
30
WITCOVER, supra note 1, at 24; see also THE DETONATORS, supra note 1, at 14,
23-24. Another German operation involved developing vials of anthrax and other bacteria
at a makeshift home laboratory in Chevy Chase, Maryland, to be injected into horses
essential for the Western front. THE DETONATORS, supra note 1, at 70.
31
See WITCOVER, supra note 1, at 21-22; THE DETONATORS, supra note 1, at 96-97.
32
WITCOVER, supra note 1, at 281-82.
33
Manchester, supra note 22, at 62; see also WITCOVER, supra note 1, at 189-92.
34
WITCOVER, supra note 1, at 193-94; Manchester, supra note 22, at 63.
35
See Manchester, supra note 22, at 66; see also WITCOVER, supra note 1, at 195.
36
See DIANA PRESTON, LUSITANIA: AN EPIC TRAGEDY 307-14 (2002).
2012]
THE EXPLOSION AND THE TESTIMONY: THE WWI SABOTAGE CLAIMS
203
territory in Texas, New Mexico and Arizona.37 When proof of this (the infamous
“Zimmermann Telegram”) was made public in March 1917, Congress readily
acceded to President Wilson’s call for a declaration of war.38
C. The Claims Commission Is Established
At war’s end, the U.S. Senate refused to ratify the multilateral Treaty of
Versailles peace treaties,39 with the consequence that the United States concluded
a separate peace treaty with Germany in 1921. The resultant U.S.-German “Treaty
of Berlin” did not replicate the “war guilt” clause40 – the controversial Article 231 of
the Versailles Treaty, deeming Germany guilty of starting World War I – which was
to have a corrosive effect in internal German politics.41 It did, however, provide for
the adjudication of claims against Germany by U.S. nationals and companies who
had suffered injuries “as a consequence of the war.”42
The resultant Mixed Claims Commission was comprised of a U.S.
Commissioner, a German Commissioner, and a third Umpire “to decide upon any
cases concerning which the commissioners may disagree.”43 Although the
Agreement contemplated that the Umpire would be appointed by the two national
Commissioners, the German side agreed that the Umpire could be nominated by
the United States. This strategy was seen as “shrewd and smart”; although it
involved some “risk,” it meant that “an impartial American would bend over
backward to avoid any appearance of favoritism, especially when making a final
judgment on what would likely be the most difficult, controversial, and expensive
cases.”44
37
BARBARA W. TUCHMAN, THE ZIMMERMANN TELEGRAM 201-02 (1958).
Id. at 196-99.
39
See WITCOVER, supra note 1, at 262; see generally RICHARD M. WATT, THE KINGS
DEPART: THE TRAGEDY OF GERMANY: VERSAILLES AND THE GERMAN REVOLUTION
(1968); MARGARET MACMILLAN, PARIS 1919: SIX MONTHS THAT CHANGED THE WORLD
(2003); ELMER BENDINER, A TIME FOR ANGELS: THE TRAGICOMIC HISTORY OF THE
LEAGUE OF NATIONS (1975).
40
Treaty of Peace Between the United States and Germany (Treaty of Berlin), Aug.
25, 1921; see also THE DETONATORS, supra note 1, at 117.
41
See WATT, supra note 39, at 442-44, 491.
42
See Agreement Between the United States and Germany for a Mixed Commission
to Determine the Amount to Be Paid by Germany in Satisfaction of Germany’s Financial
Obligations Under the Treaty Concluded Between the Two Governments on August 25,
1921, Art. I, Aug. 10, 1922.
43
Id. Art. II.
44
THE DETONATORS, supra note 1, at 117. The umpires thus appointed were
Associate Supreme Court Justice William H. Day (1922-23), Judge Edwin B. Parker,
formerly of the Texas bar (1923-29), Roland Boyden, a former Versailles reparations
commissioner (1930-31), and Associate Supreme Court Justice Owen Roberts (1932-39).
The U.S. Commissioner was Chandler Anderson until his death in 1936, followed by
Christopher Garnett (1936-39). Germany appointed Wilhelm Kiesselbach; he resigned in
1934 and was replaced by Victor Huecking.
38
204
THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION
[Vol. 23
In practice, the Umpire participated in hearings and deliberations, effectively
making it a three-person arbitral tribunal.45 But it had unique evidentiary
limitations:
The rules of the commission had been established with expediency in mind.
While any attorney in private practice could file a claim, only governmentappointed lawyers, called agents, could argue a case. The commission did not
have subpoena power, meaning that the agents could not force key witnesses to
testify. The agents would not have the benefit of eyewitness testimony either.
Because of the logistics of shuttling potential witnesses around the globe for
hearings, it was agreed that only written testimony and affidavits would be
accepted. The assigning or assuaging of German guilt was entirely dependent on
the agents’ legal briefs and arguments in front of the commissioners. The debates
could be theatrical, contentious, and funny, with agents lambasting each other
while trying to influence the commissioners. Even so, the atmosphere was more
collegial than confrontational.46
The Commission’s procedures did not contain a subpoena power – in contrast
to the power of the German agent, who was authorized under a 1923 German
statute to summon and examine witnesses if located in Germany. For much of the
Commission’s life, the U.S. agent lacked a similar power – a gap that was filled
only in 1933.47
Thousands of claims were heard and determined by the Commission, most
notably Lusitania, in which U.S. victims of the sinking received significant
damages – including, notably, an award of what are today called “moral”
damages, or “compensat[ion] for an injury inflicted resulting in mental suffering,
injury to his feelings, humiliation, shame, degradation, loss of social position or
injury to . . . credit or . . . reputation,” to reflect the German navy’s violation of the
then-perceived laws relating to the treatment of civilian vessels on the high seas
during wartime.48 By mid-1925, “more than 12,000 cases had been filed, more
than 6,700 had been settled, and nearly $81 million had been paid out to American
claimants”49 – so much so that, by a 1928 Act of Congress, the United States
authorized the return of 80% of German property seized during the war (which
had previously been held, under the terms of the Treaty of Berlin, as collateral to
secure payment of U.S. claims against Germany).50
“Of the 6,000 cases that remained, nearly all of them fell into one of several
categories that had already been ruled on and could easily be settled. But there
was one case, filed in March 1924, that lingered on the [Mixed Claims
45
See L.H. Woolsey, The Sabotage Claims Against Germany, 34 AM. J. INT’L L. 23,
25-27 (1940).
46
THE DETONATORS, supra note 1, at 118.
47
See infra note 122.
48
Lusitania Cases (U.S. v. Ger.), 7 R.I.A.A. 32, 36-37, 40 (Mixed Claims Comm’n
1923).
49
THE DETONATORS, supra note 1, at 119.
50
Settlement of War Claims Act of 1928, Ch. 167, 45 Stat. 254.
2012]
THE EXPLOSION AND THE TESTIMONY: THE WWI SABOTAGE CLAIMS
205
Commission’s] docket.”51 The two main cases left, however, were the Sabotage
Claims – Black Tom and Kingsland.
D. Initial Skirmishing
Although by war’s end it was widely suspected that Germany had been
engaged in wartime sabotage,52 proof initially came in piecemeal and in the form
of hearsay. During the war, a “pale, jittery young” Slovakian-born American,
Michael Kristoff, had confessed to several people (including his aunt) that he had
participated in the Black Tom sabotage.53 Meanwhile, in August 1918, a U.S.
military commission based in Texas received evidence that another German agent,
Lothar Witzke (on trial for different espionage activities), had bragged about his
involvement in the Black Tom sabotage.54 In addition, it emerged that the
assistant employment agent at the Kingsland Foundry, responsible for hiring
Wozniak in 1917, had been linked to the German secret service, heightening prior
suspicion that Wozniak set the fire.55
The U.S. agent56 submitted an initial brief to the Commission in 1924.
Drawing heavily on circumstantial evidence, this submission claimed that the
evidence was “so overwhelming and convincing” that it was unnecessary “to
burden the record unduly with a multiplicity of documents.”57 The “key items”
included wartime cables from Germany’s General Staff “to all military attachés
to be provided unlimited funds for ‘setting incendiary fires to stocks of raw
materials and finished products.’”58 Despite this, the U.S. brief failed to link
51
THE DETONATORS, supra note 1, at 119.
See WITCOVER, supra note 1, at 259 (noting the 1919 findings of a Senate
Committee, naming von Papen as a spy).
53
Manchester, supra note 22, at 62; see also WITCOVER, supra note 1, at 257.
54
WITCOVER, supra note 1 at 246. Witzke received a death sentence, id. at 247,
subsequently commuted to life imprisonment by President Wilson. Some years after the
war he was repatriated. See id. at 267.
55
Manchester, supra note 22, at 63.
56
Due to the Claims Commission procedure, the only official “voices” for U.S.
interests were Robert Bonynge, the government-appointed U.S. “agent,” and Harold
Martin, a “career government lawyer.” THE DETONATORS, supra note 1, at 119-21.
Working with them were the attorneys for Lehigh Valley (owner of the Black Tom Plant)
and Canadian Car and Foundry (owner of the Kingsland Foundry), represented by Amos
J. Peaslee of Peaslee and Bingham, as well as the attorneys for Bethlehem Steel
(represented by John J. McCloy, then of Cravath). See WITCOVER, supra note 1, at 26465; THE DETONATORS, supra note 1, at 194-95.
57
WITCOVER, supra note 1, at 265 (quoting U.S. brief).
58
Id. at 265-66 (quoting German general order). Other items included (1) a 1914
circular telling all German naval attachés and agents to recruit non-German “deck hands,
among whom are to be found a great many anarchists and escaped criminals,” to sabotage
munitions-bearing ships; (2) a cable from Zimmermann to von Bernstorff suggesting the
names of saboteurs; and (3) German memos that implicated von Papen in espionage. Id.
(internal quotation marks omitted).
52
206
THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION
[Vol. 23
Germany specifically to the fires at Black Tom and Kingsland. Indeed, the case
“resembled a ladder, with many rungs missing in the middle” to link the alleged
saboteurs (the “vague” Kristoff and the “slightly daffy” Wozniak) with the
German state.59
German officials were “desperate” not to “admit guilt” for actions that, if
proven, would “symboliz[e] the duplicity of the [K]aiser’s government.”60 In its
initial replies, while admitting some minor violations of neutrality, as well as
some “relatively harmless” espionage, Germany denied involvement in the fires,
claiming the two fires were accidental.61 The alleged German agents, including
Witzke, denied everything:
Every accusation that was corroborated by material from [German files] was
admitted to. But every accusation [the U.S. team] made without proof was met
with a denial. The German testimonies were expansive and dovetailed perfectly.
They were also clever and well crafted. Denying the existence of a spy network
in the United States was impossible, but admitting to it made their denials of
62
Black Tom seem more credible.
E. British Intelligence Lends a Hand
A seemingly major break then occurred – the British Admiralty allowed the
U.S. team to review previously classified British transcripts of intercepted German
diplomatic and military cables.63 Among these was a 1918 message from German
agent Kurt Jahnke to the German Foreign Office, referring to his “successes” and
the “satisfactory” destruction of munitions factories in the United States.64
Another message revealed the names of two other agents in America: Frederick
Herrmann and Paul Hilken.65 Although none of these messages explicitly tied
Germany to the Black Tom and Kingsland attacks, they punctured the initial
German defense, because they indicated a second, deeper layer of espionage
activity, whose existence could not simply be denied by former Embassy officials
like von Bernstorff and von Papen.66
59
Manchester, supra note 22, at 64. “Low level” evidence was often vulnerable.
Mena Edwards, a self-styled model at a New York “establishment,” testified she had
overheard Germans planning an operation on the eve of the 1916 Black Tom attack.
Germany’s agent discredited her as a “frequent visitor to a house of entertainment of a
most dubious type.” WITCOVER, supra note 1, at 4, 266, 268; see also THE DETONATORS,
supra note 1, at 88-89.
60
THE DETONATORS, supra note 1, at 123.
61
See id. at 133. By then back to Germany, Witzke claimed his earlier confession
had been coerced. WITCOVER, supra note 1, at 267.
62
THE DETONATORS, supra note 1, at 132.
63
Id. at 136-37; WITCOVER, supra note 1, at 268.
64
THE DETONATORS, supra note 1, at 136-37.
65
Id. at 137.
66
See id. at 137-38.
2012]
THE EXPLOSION AND THE TESTIMONY: THE WWI SABOTAGE CLAIMS
207
Realizing the U.S. team would eventually track down members of the former
sabotage teams, the German agent began settlement discussions.67 Talks were
unsuccessful, due in part to opposition to a deal expressed on the floor of the
German Reichstag by von Papen, now a member of the German parliament. Von
Papen “positively demand[ed]” a public hearing of the claim, describing
settlement as a “cowardly compromise.”68 The German agent was told to fight.
F. Germany’s “Total Denial Defense” Continues
The U.S. agent’s full evidentiary submission (made in 1927) totaled nineteen
volumes.69 In Germany’s response, filed in January 1928, liability again was
denied. Affidavits from German officials attempted to explain away the wartime
“sabotage” cables, while Embassy officials like von Bernstorff and von Papen
claimed they had ignored the sabotage instructions. The German agent, von
Lewinski, was formidable:
Von Lewinski knew how to play the [Mixed Claims Commission]. For
starters, he took advantage of the fact that witnesses were not allowed to testify
in front of the commissioners and the umpire. He knew that the panel would
never get to hear someone struggle through an explanation, stammering to
remember his story, getting tripped up by a cross-examination. He knew the
panelists would never get to judge someone’s credibility with their own eyes,
never see if a witness shifted uncomfortably in his seat or looked to his attorney
for direction. The texture and tone of what people said would be stripped
70
away.
G. Hilken and Herrmann Are Identified as Material Witnesses
Realizing that direct evidence of guilt was needed, and relying on the British
cable intercepts, the U.S. team tracked down Paul Hilken, a former Baltimore
shipping executive now based in New York. The German cables had identified
Hilken as the paymaster of the sabotage operation. Hilken soon confessed to
complicity in the Black Tom and Kingsland attacks, giving a statement admitting
he had paid money to German saboteurs in August 1916 and identifying Captain
Frederick Hinsch, a German merchant sea captain, as being in charge of “the men
that set fire to Black Tom.”71 Hinsch became a “cornerstone of the American
case,” because he provided the link between the individual saboteurs and the
German Government.72
67
Id. at 138.
Id. at 138-39 (internal quotation marks omitted).
69
Id. at 142.
70
Id. at 143.
71
WITCOVER, supra note 1, at 270 (internal quotation marks omitted); THE
DETONATORS, supra note 1, at 145.
72
Manchester, supra note 22, at 63-64.
68
208
THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION
[Vol. 23
Hilken’s evidence, with its detailed claim of having paid Hinsch $2,000 for
the Black Tom sabotage, was potentially damning – the Germans knew it was
enough to persuade “even the lenient and sympathetic [Commission] of
Germany’s guilt.”73 But some of Hilken’s testimony (including the month of the
payment to Hinsch) was internally inconsistent. This would prove extremely
problematic for the American side.
In 1930, the American investigative team tracked down Fred Herrmann, a
German-American resident in Chile. Herrmann privately confessed to his own
involvement in the Kingsland fire, confirmed Wozniak’s role and also identified
Captain Hinsch as a chief German agent.74 But in a coup, the German team in
Chile was then able to get to Herrmann and somehow induce him to sign an
affidavit prepared by Germany’s legal team, flatly denying any involvement in
sabotage.75 Thus, even though Herrmann later gave evidence for the U.S. side, his
testimony was tainted by prior inconsistent statements.
As Millman points out, “divergences” like this “were good for the German
case,” because they were “enough to cast doubt, and with the [C]ommission doubt
was better than proof.”76 Absent “hard evidence” of a payment, and armed with a
categorical denial of liability by Captain Hinsch, the German team could “breathe
easier.”77
H. The Hearings
Final hearings took place at The Hague in September 1930.78 The U.S.
agent’s oral argument focused on the 1915 “sabotage” cable, while the German
agents once again attacked Hilken and Herrmann, the two who had testified for
the United States.79 The German agent, von Lewinski, stressed the failure of the
American agent to supply direct proof of the particular alleged acts of sabotage,
focusing relentlessly on the apparent factual discrepancies in the testimony of the
two alleged German saboteurs, Hilken and Herrmann, who had given testimony
for the American side.80 Of Herrmann, Germany’s agent said:
73
THE DETONATORS, supra note 1, at 150.
WITCOVER, supra note 1, at 276-77; see also THE DETONATORS, supra note 1, at
145-46.
75
THE DETONATORS, supra note 1, at 149-50.
76
Id. at 154. Germany also found a former colleague of Hilken, Carl Ahrendt, who
was able to go to company records and claim that the $2,000 payment, previously claimed
by Hilken to have been paid in June 1916, was actually made in January 1916 and,
according to Ahrendt, for another purpose. Id. at 153-54.
77
Id. at 154.
78
Earlier hearings in Washington in April 1929 were deemed “premature,” with the
Commission allowing further evidence. Sabotage Claims (1933 Decision), supra note 8,
at 182. Umpire Parker died in late 1929 and was replaced by Roland Boyden.
79
See THE DETONATORS, supra note 1, at 184-90.
80
WITCOVER, supra note 1, at 279.
74
2012]
THE EXPLOSION AND THE TESTIMONY: THE WWI SABOTAGE CLAIMS
209
I submit to the Commission that Herrmann is a proven perjurer, uncorroborated
by unimpeached witnesses, contradicted on material points, and his whole life is
a fantasy, filled with conflicts and improbabilities at absolute variance with all of
81
the facts established by the evidence.
As Jules Witcover remarks:
The German defense strategy was transparent: to harp on the inconsistencies and
conflicts in the versions testified to by Herrmann and Hilken before and after
each had decided to throw in with the American side. In a case that clearly was
going to ride on the commission’s weighing of circumstantial evidence and the
credibility of witnesses – a case without a “smoking gun” – the German strategy
82
was as deft as it was simple.
At hearing’s end, the private attorneys representing the United States feared
that their agent “[did not] have [his] ducks all lined up in a row.”83 For his part,
von Lewinski summed up with a flourish:
We have produced to the Commission all that we know. Nothing has been
concealed, nothing has been withheld. My government stands before you with
84
clean hands. The claims should be dismissed.
The Commission retired to chambers in Hamburg to deliberate.
I. The 1930 Decision: Case Dismissed
On October 16, 1930, the Commission reached a final decision. Their
introductory remarks set the tone: It praised the “good faith” of both sides,
expressing the “belie[f] that the present German Government was entirely
prepared to bring out the truth and to take the consequences, whatever they might
be.”85 While 1915 cable traffic proved that the German General Staff had indeed
authorized German agents in the United States to conduct sabotage activities even
at a time when the United States was neutral,86 the Commission accepted
81
THE DETONATORS, supra note 1, at 191.
WITCOVER, supra note 1, at 279-80. As for the German Government’s own files,
the German agent claimed that German General Staff files were destroyed at the direction
of the Inter-Allied Commission of Control established under the Treaty of Versailles “to
see that in the future no military organization in Germany could rise again.” Id. at 274
(internal quotation marks omitted).
83
THE DETONATORS, supra note 1, at 189.
84
Id. at 191 (internal quotation marks omitted).
85
Sabotage Claims (1930 Decision), supra note 3, at 85.
86
See id. at 84-85. The Commission refused to accept testimony from one General
Staff official (Marguerre, a high official in the Political Office) that the cable’s
authorization was limited to actions while the United States was neutral, and also appears
82
210
THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION
[Vol. 23
Germany’s affidavit testimony that “[its] diplomatic representatives in the United
States were not in accord with the idea and did nothing in the way of exercising
this particular authority,” and, indeed, that their “opposition” to any sabotage
policy became “stronger” as diplomatic tensions became “more acute.”87 In the
Commission’s view, German wartime espionage in the United States involved
only a “small” group of agents not “organized effectively” whose “reports” were
full of “pretensions” and “for the most part gross exaggerations of their actual
accomplishments.”88
What was lacking, the Commission held, was proof that the particular
incidents at Black Tom and Kingsland were attributable to Germany: not
necessarily “direct proof,” but evidence that would leave the Commission
“reasonably convinced that the fires occurred in some way through the acts of
certain German agents.”89 In the Kingsland case, the testimony linking
Germany’s agents to the fire came principally in the form of testimony from
Hilken and Herrmann.90 But their stories were inconsistent, so much so that the
Commission found they were “both liars, not presumptive but proven.”91 Indeed,
Herrmann’s testimony about the Kingsland fire – that Wozniak was used by
Germany to commit sabotage – was so full of “discrepancies and improbabilities”
that it actually suggested “Wozniak was not guilty.”92 Moreover, the Commission
found that the physical evidence did not support the view that the alleged fire was
due to the use of “inflammatory pencils” (as Herrmann had claimed).93
As to the Black Tom case, the Commission found that the physical evidence
left the fire’s “cause open,”94 but the case against Germany depended upon proof
linking particular German agents with the fire. Once again the proof was lacking:
the prime suspect, Michael Kristoff, was “a simpleton, almost a plain fool” whose
earlier “confession” was not witnessed by credible sources.95 Moreover, the only
to have doubted testimony from another (Nadolny) that the sabotage policy had been
abandoned shortly after the cable. Id.
87
Id. at 85.
88
Id. at 85-86.
89
Id. at 84. The Commission also observed that, if indeed German agents or “subagents” were proven to have been authorized by the German General Staff, or Captain
Hinsch, to conduct sabotage, there would be no doubt as to Germany’s responsibility as a
state to pay compensation for such attacks. Id.
90
Id. at 86. The Commission’s findings did not turn on Hinsch’s denials: “though we
have no evidence that Hinsch is a liar, there is a strong presumption that he might be
under circumstances which pointed to his guilt.” Id.
91
Id.; see also id. at 87-89.
92
Id. at 89. The Commission did not place weight on Wozniak’s own denials of
involvement, finding he was a “crank” who would “not let a little thing like truth stand in
his way.” Id. at 89-90.
93
Id. at 89-91.
94
Id. at 92.
95
Id. at 96-97; see also id. at 92-99 (surveying the evidence implicating Kristoff).
2012]
THE EXPLOSION AND THE TESTIMONY: THE WWI SABOTAGE CLAIMS
211
evidence linking Kristoff to the supposed spymaster, Captain Hinsch, had come
from Herrmann, a tainted witness.96
In sum, “[t]he evidence . . . pointed in a number of different directions, but
even when some special part of the evidence has pointed in some one direction it
has failed to carry conviction.”97 It “f[ell] far short . . . not merely of holding
Germany responsible for [Black Tom], but of thinking that her agents must have
been the cause, even though the proof is lacking.”98
III. REOPENING THE CASE
A. First New Discoveries: The 1917 Magazine and Other Items
In January 1931, the U.S. team filed a raft of motions, including (1) a request
for reargument on the grounds that the October 1930 decision had “manifest errors
in its findings of fact on the evidence submitted,” and “fail[ed] to apply important
established principles of law and the rules of the Commission”;99 (2) a request to
present new evidence that would demonstrate Germany’s guilt; and (3) a request
that the Commission issue subpoenas to receive testimony for witnesses in the
United States, made pursuant to a 1930 Act of Congress that enabled international
tribunals to issue subpoenas.100
96
See id. at 99-100. The Commission likewise “eliminated” two other suspects
(Witzke and Jahnke) from suspicion, refusing to believe they were in league with Kristoff
– “[w]e do not believe that they would even have trusted Kristoff to row a boat, much less
to take a real part in any Black Tom expedition” – and noting their main accuser was a
German prisoner of war, Altendorf, who was “the chief liar who has appeared in the cases
before us, a chief among competitors of no mean qualifications.” Id. at 92-93. The
Commission also credited reports that Witzke and Jahnke were not “in the east” at the
time of Black Tom. Id. at 93.
97
Id. at 100. It added that the evidence linking Kristoff to the Black Tom fire was
the strongest presented by the United States (it alone “c[ame] the nearest to leading
somewhere”) but was not sufficient. Id.
98
Id. at 100-01.
99
Lehigh Valley R.R. v. Germany, 8 R.I.A.A. 104, 104 (Mixed Claims Comm’n
1932) [hereinafter Sabotage Claims (1932 Decision)] (internal quotation marks omitted);
see also Woolsey, supra note 45, at 23-24.
100
See Woolsey, supra note 45, at 27 n.19. The 1930 Act enabled any member of an
international tribunal or commission to issue subpoenas “whenever any claim in which the
United States or any of its nationals is interested is pending before an international
tribunal or commission, established pursuant to an agreement between the United States
and any foreign government or governments.” Act of July 3, 1930, ch. 851, 46 Stat. 1005,
1005-06. The 1930 Act was drafted to aid an arbitration then pending between the United
States and Canada concerning the S.S. I’m Alone. See S.S. “I’m Alone” (Can. v. U.S.), 3
R.I.A.A. 1609 (Mixed Claims Comm’n 1933, 1935), a prohibition-era dispute that
concerned the asserted right of U.S. authorities to pursue and sink Canadian vessels on the
high seas that allegedly were carrying liquor. See Hans Smit, Assistance Rendered by the
212
THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION
[Vol. 23
The reargument application was summarily dismissed on March 30, 1931,101
along with the request to receive subpoena testimony (which, the Commission
held, exceeded the Commission’s powers).102 Both sides were, however, invited
to make further submissions on whether the 1930 decision could be reopened
based on “new evidence.”
In July 1931, the U.S. agent filed a “supplemental petition” presenting
the Herrmann invisible ink message described above – embedded in the
1917 Blue Book magazine – bearing an enciphered reference to the
“Jersey City Terminal” fire;103
a check stub showing that Hilken had made a $2,000 payment in August
1916, allegedly in connection with the Black Tom bombing; and
a June 1, 1931 statement by Wozniak confessing to setting the Kingsland
fire, accompanied by several wartime letters by Wozniak that
corroborated this story.104
In the ensuing submissions, Germany argued forcefully that the Blue Book
message was a recent fabrication by Hilken and that the Wozniak confession the
result of bribery.105 Germany’s experts disputed the provenance of the Blue Book
magazine, claiming the invisible ink message had not (as Hilken claimed) been
written in 1917, but instead had recently been created.106 The U.S. side countered
with six more experts who testified, in “exhaustive and detailed” fashion, that the
Blue Book message must have been written “when the paper was still relatively
fresh,” i.e., not recently.107 Amid this expert testimony was a cryptic suggestion
United States in Proceedings Before International Tribunals, 62 COLUM. L. REV. 1264,
1264 (1962).
101
Sabotage Claims (1932 Decision), supra note 99, at 104; Woolsey, supra note 45,
at 24.
102
See Woolsey, supra note 45, at 27 n.19. Specifically, it held that the use of
subpoenas were not authorized by the Agreement establishing the Commission, meaning
that a subpoena could not be issued without the joint consent of both Governments. See
Sabotage Claims (1932 Decision), supra note 99, at 105. After it became clear the
German Government would never consent, Congress enacted further subpoena legislation
in 1933. See infra note 122.
103
Supra note 5, and accompanying text.
104
WITCOVER, supra note 1, at 285-86; see also Woolsey, supra note 45, at 28.
105
See WITCOVER, supra note 1, at 287-88. Although the authenticity of the ink
message was verified by several experts, Germany produced an expert who disputed its
provenance, and who claimed that the 1917 magazine had recently been purchased by
Hilken. See id; THE DETONATORS, supra note 1, at 205-07, 216.
106
THE DETONATORS, supra note 1, at 216. The German side also claimed that by
1917 their intelligence service had abandoned using lemon juice and were using a wholly
different kind of invisible ink. Id. at 219-20.
107
Id. at 220-21.
2012]
THE EXPLOSION AND THE TESTIMONY: THE WWI SABOTAGE CLAIMS
213
in the affidavit of Mr. Osborn (Germany’s expert) that other experts hired by the
United States, including a Mr. John Stein, might agree with his views. This
statement was to assume greater significance in the years to come, when it turned
out Stein had made ex parte contact with the German Commissioner in an effort to
discredit the U.S. case.
The petition to reopen the case was heard in November 1932 in Washington,
D.C. by its new Umpire, Associate U.S. Supreme Court Justice Owen Roberts,108
and the other two commissioners.109 Germany argued not only that the United
States’ “new” evidence was unreliable, but that the Commission, having already
rendered a final award, lacked power to consider the issue.110 At the end of the
hearing, the U.S. team was fearful that, faced with “simply an array of conflicting
highly technical evidence,” the Commission might “succumb” to Germany’s
argument.111
B. Setback: The 1932 Ruling, Rejecting the New Evidence
Soon after the hearings, the two national Commissioners rendered split
opinions.
Germany’s commissioner, Kiesselbach, considered that the
Commission lacked jurisdiction even to hear the case. The U.S. Commissioner,
Chandler Anderson, disagreed: indeed, as regards the Kingsland case, he felt the
United States had now proven German liability.112
Umpire Roberts, however, denied the petition.113 Despite agreeing that the
new evidence cast doubt on the theory that the Kingsland fire was an “industrial
108
Sabotage Claims (1932 Decision), supra note 99, at 107. Umpire Boyden had
died in late 1931. THE DETONATORS, supra note 1, at 209. By now, the “case had . . .
outlasted three other umpires.” Id.
109
THE DETONATORS, supra note 1, at 226-28.
110
In this, Germany had some support from a previous decision (issued jointly by the
two Commissioners) in Philadelphia-Girard National Bank v. Germany, 8 R.I.A.A. 69
(Mixed Claims Comm’n 1930), holding that the Commission could not reopen a decision
that had been “final and binding” based upon a private claimant’s submission of “new
evidence changing the status of the claim as submitted and decided.” Id. at 70.
111
THE DETONATORS, supra note 1, at 217 (internal quotation marks omitted).
112
Sabotage Claims (1932 Decision), supra note 99, at 107, 122-27. Millman reports
that Commissioner Anderson regretted having “gone along” with the initial decision to
dismiss the U.S. claims, and informally informed the assistant U.S. agent that he would
support reopening the 1930 decision, providing there was “no question of the authenticity
of [the new] documents.” THE DETONATORS, supra note 1, at 217 (internal quotation
marks omitted). Another more controversial ex parte conversation on this subject appears
to have taken place between the German side and the German Commissioner. See infra
note 136 and accompanying text.
113
While noting Germany’s threshold objection that the Commission lacked
jurisdiction even to hear the case, Umpire Roberts held that the issue need not be
adjudicated, given his views on the weight to be given the new evidence. Sabotage
Claims (1932 Decision), supra note 99, at 122.
214
THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION
[Vol. 23
accident,” the efforts to implicate Wozniak were not convincing.114 The
incriminating “letters” written by Wozniak “show[ed] all the characteristics of
artificially aged documents,” and were disregarded.115
On Black Tom, Umpire Roberts held first that the check stub produced by
Hilken, while now proving that Hinsch actually received a $2,000 payment in
August 1916 (despite his prior denials), still did not connect the payment with
sabotage.116 The Blue Book message, he held, was of doubtful provenance
because “it comes from a source [Hilken] which the Commission has held
unworthy of belief.”117 The expert evidence on authenticity was in “diametrical[]”
Most importantly, its actual contents (Umpire Roberts
contradiction.118
considered) were suspect: the message itself so perfectly served the American
case that this fact alone suggested forgery. Umpire Roberts commented upon the
“extraordinary . . . manner th[e] document dovetails with all the important and
disputed points of claimants’ case,” and contained “pat” references that all seemed
tailored to “the claimants’ points of proof – this aside from the absurdity of
sending this unnecessary information into an enemy country to a suspected spy
then under surveillance.”119 In sum, the new evidence had “arouse[d] suspicion,”
but was not, standing alone, “enough to reach a certain conclusion.”120
C. The 1933 Opinion on the Commission’s Power to “Reopen” the Case
The result spurred the Americans into even more vigorous action:
The American investigators were at a loss to understand how the umpire could be
so blind as not to recognize the Germans’ fraud. . . . The Americans concluded
that their only hope now was to prove beyond the shadow of a doubt that the
Germans, in their desperation to defend their national honor in the case, had
121
indeed resorted to fraud on a grand scale against the commission itself.
In May 1933, the U.S. agent filed a new petition launching a broadside attack
on the whole German case – claiming that key German witnesses had “furnished
fraudulent, incomplete, collusive and false evidence which misled the
Commission,” and advising the Commission that there were witnesses within the
United States in a position to testify about Germany’s culpability “but whose
114
Id. at 108.
Id. at 111.
116
Id. at 114.
117
Id. at 116. Germany had produced evidence that certain back issues of Blue Book
magazine had recently been sold by a local bookstore to persons unknown, giving rise to
an inference of recent fabrication. Id. at 120.
118
Id. at 121.
119
Id. at 119.
120
Id at 121.
121
WITCOVER, supra note 1, at 295.
115
2012]
THE EXPLOSION AND THE TESTIMONY: THE WWI SABOTAGE CLAIMS
215
testimony cannot be obtained without authority to issue subpoenas and to subject
such witnesses to penalties for failure to testify fully and truthfully.”122
By the time the Commission members met in October 1933, “a very large
quantity of evidence” had been filed by the U.S. agent,123 including a full
confession from Wozniak himself, obtained through the 1933 subpoena statute,
detailing his involvement in the Kingsland explosion, and further implicating
Captain Hinsch in the attack. In view of this material, the Commission decided to
confront a basic threshold issue – “Has the Commission the power to reopen a
case upon the showing made by the pending petition?”124
On December 15, 1933, Umpire Roberts answered this jurisdictional question
in the affirmative. After rejecting the two “extreme” views on jurisdiction being
proffered by the two national Commissioners,125 he proceeded to articulate three
principles that governed the tribunal’s jurisdiction to review prior decisions. First,
he held that, if it could be shown that a decision was based upon a clear
misinterpretation of evidence or “mistake in calculation,” or where an award did
not comport with factual findings or involved “material error of law,” then the
Commission “not only ha[d] power, but [was] under the duty, upon a proper
showing, to reopen and correct a decision to accord with the facts and the
applicable legal rules” – indeed “the Commission ha[d] repeatedly done so where
there was palpable error in its decisions.”126
Second, Umpire Roberts stated, the Commission did not possess a general
power to receive “after-discovered evidence,” after the proof had been closed.127
The Umpire found that the U.S. agent had not been subject to a “time limit” upon
the “closing of proofs,” but instead possessed the right to keep the proceedings
open until he was “satisfied” his side had exhausted all means of proof. Thus, in
these cases, “[t]he American Agent was under no obligation to close his record
and submit his case at The Hague if he knew, or had reason to expect, that further
evidence was obtainable.”128 In other words, the U.S. side was bound by its own
122
Sabotage Claims (1933 Decision), supra note 8, at 184 (internal quotation marks
omitted); see also Woolsey, supra note 45, at 30. In this regard, the U.S. side now had the
advantage of a 1933 Act permitting the U.S. agent to subpoena testimony. See 48 Stat.
117 (1933).
123
Sabotage Claims (1933 Decision), supra note 8, at 185.
124
Id. at 186 (emphasis added).
125
The two national Commissioners were in conflict: Kiesselbach maintained that
the Commission lacked any such power after ruling on an individual claim, while
Anderson argued that the Commission’s entire proceedings represented a “single” claim
that was still ongoing. Id. at 162, 164, 186.
126
Id. at 188. The Umpire held that the initial, unsuccessful January 1931 rehearing
petition had been properly brought under this power.
127
Id.
128
Id. at 188-89. The Umpire added that, although the 1933 Act had only just
conferred a subpoena power to the U.S. agent, this still was “not [an] excuse” for the U.S.
agent’s decision to close the proofs in 1930, as the absence of the subpoena power should
have been “as obvious” then as it was in 1933 – and, indeed, the United States could have
enacted a subpoena statute some years before, just as Germany had done in 1923. Id. at 189.
216
THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION
[Vol. 23
litigation decisions prior to and during the Hague hearings, and could not now
revisit those decisions.
The third and decisive question, however, concerned whether the Commission
had power to reopen a decision that allegedly was the product of fraud as
presently alleged.129 While declining to address the substance of the U.S. side’s
fraud allegation evidence, Umpire Roberts had no doubt that the Commission
possessed power to hear them:
The Commission is not functus officio. It still sits as a court. To it in that
capacity are brought charges that it has been defrauded and misled by perjury,
collusion, and suppression. No tribunal worthy its name or of any respect may
allow its decision to stand if such allegations are well-founded. Every tribunal
has inherent power to reopen and to revise a decision induced by fraud. If it may
correct its own errors and mistakes, a fortiori it may, while it still has jurisdiction
130
of a cause, correct errors into which it has been led by fraud and collusion.
Thus the Commissioner would “reopen” the proceedings to “consider the further
evidence tendered by the American Agent” along with any reply evidence by
Germany, and then decide whether prior decisions should stand.131
D. Fresh Factual Evidence and Other Revelations
As presented in February 1934, the “new” U.S. evidence submitted included
copious subpoenaed material which, it claimed, blew the case wide open:
the Wozniak confession, noted already;
documents obtained from Hilken’s shipping company, substantiating his
claim that he was the “paymaster” for Hinsch and other saboteurs;132
various witnesses, previously relied upon by Germany to claim the 1917
magazine message had been forged, gave testimony under oath that
undermined Germany’s case and helped rehabilitate the document’s
authenticity;133 and
James Larkin, an Irish nationalist, testified that German agents had
attempted to involve him in “destroying the munitions” at Black Tom.134
129
Id. at 189-90.
Id.
131
Id. at 190. By a clarifying order issued in 1935, Umpire Roberts made clear that
the Commission would proceed first to hear the issue of whether it was defrauded; only
after making this determination in the affirmative could it proceed to a reconsideration of
the merits. See Lehigh Valley R.R. v. Germany, 8 R.I.A.A. 211, 222 (Mixed Claims
Comm’n 1935).
132
WITCOVER, supra note 1, at 297.
133
Id.
134
Id. at 298-99.
130
2012]
THE EXPLOSION AND THE TESTIMONY: THE WWI SABOTAGE CLAIMS
217
The hearings took place in May 1935 in Washington;135 however, they were
overshadowed by a highly significant disclosure by Umpire Roberts. He revealed
that, shortly before the 1932 hearings, Mr. Stein, one of the American experts, had
attempted to contact him ex parte. Although the Umpire refused to speak with
Mr. Stein, Mr Stein somehow managed to get a message to the German
Commissioner, who revealed to the Umpire that “the [U.S.] claimants had
suppressed an expert report adverse to the authenticity of the Wozniak letters and
the Herrmann message.”136 This “disturb[ing]” claim had given Umpire Roberts
the impression there indeed had been “suppression” of an expert report – an
impression reinforced when Germany’s expert, Mr. Osborn, testified in his
statement that he was surprised that Stein had not testified.137
This revelation cast a cloud over the 1932 proceedings in which Umpire
Roberts had been so dismissive of the “new evidence” and, in particular, the 1917
Blue Book magazine. Recognizing this, the Commission now held that there was
now “no sufficient ground” to “susp[ect]” the “authenticity” of the Herrmann
message, and that it would therefore grant “reconsideration” of the initial 1931
motion to reopen the case based on this new evidence.138 Thus, the Commission
unanimously ordered that its 1932 decision “be set aside” and that the parties be in
the “position they were before” that decision.139
Effectively, therefore, the 1917 Blue Book magazine evidence had been
rehabilitated, allowing the entirety of the post-1930 evidentiary record to be taken
into account in assessing whether the German witnesses had committed fraud on
the Commission.
Seeing the handwriting on the wall, the German side immediately commenced
settlement talks, resulting in the parties reaching a provisional agreement in
Munich in July 1936. As before, however, the German Government met internal
opposition to such a settlement, and an agreement was never signed.140 The case
was restored to the Commission’s calendar, further briefing was received, and oral
argument took place in January 1939 in Washington.141
135
During 1934, Germany filed an answer that categorically denied all liability, but
also called for the U.S. agent to give particularized allegations. See Lehigh Valley R.R. v.
Germany, 8 R.I.A.A. 190, 191 (Mixed Claims Comm’n 1934). The Umpire overruled this
objection, see id. at 211, and Germany presented reply materials in early 1935.
136
Lehigh Valley R.R. v. Germany, 8 R.I.A.A. 222, 223 (Mixed Claims Comm’n
1936) [hereinafter Sabotage Claims (1936 Decision)]; see also THE DETONATORS, supra
note 1, at 248-49. It seems likely that Kiesselbach had engaged in ex parte
communications with the German agent.
137
Sabotage Claims (1936 Decision), supra note 136, at 223.
138
Id. at 223-24.
139
Id. at 224.
140
Id.
141
Sabotage Claims (1939 Decision), supra note 9, at 251.
218
THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION
[Vol. 23
E. The 1939 Deliberations and Rulings
Throughout February 1939, the three Commission members (Umpire Roberts
and the two national Commissioners) began their conferences to determine
whether Germany indeed was guilty of testimonial fraud.142 At an early stage in
those deliberations, U.S. Commissioner Christopher Garnett expressed the view
that Germany had knowingly presented false evidence, while the German
Commissioner, Victor Huecking, disagreed.143 Umpire Roberts then indicated that
he agreed with Commissioner Garnett and that the Commission should thus turn
to the merits on the basis that the case was now reopened.144 At that point (now
March 1939), Commissioner Huecking resigned from the Commission.145
In view of this abrupt, last-minute resignation, Commissioner Garnett was
“impelled to the conclusion that [Huecking’s] only motive for retiring from the
Commission was to prevent, if possible, a conclusion from being reached, or to
render the award invalid should one be made”;146 a tactic that deserved the
“disapprobation of every right-thinking person.”147 Observing that the resignation
appeared to be designed to undermine the arbitral process, Commissioner Garnett
considered that the Commission (through its two remaining commissioners) still
possessed power to continue to determine “the questions at issue at the time of his
retirement.”148 Umpire Roberts concurred that the “withdrawal of the German
Commissioner” at this late stage “did not oust the jurisdiction of the
Commission.”149
With jurisdiction dealt with, Commissioner Garnett’s opinion turned to the
fraud allegations. He set about demolishing Germany’s position point by point,
beginning with Germany’s attempts (through former diplomats von Bernstorff and
von Papen) to diminish the significance of the 1915 “sabotage” cable. In
Garnett’s view, von Bernstorff’s and von Papen’s denials were “conclusively”
disproven by the evidence showing that German sabotage activities in the United
States had been widespread, that these activities included the importation of
“incendiary devices,” and that von Bernstorff and von Papen had “full
Von Bernstorff’s sworn denials, thus, were
knowledge” of them.150
151
As to the particulars of the two sabotage cases, Commissioner
“insincer[e].”
Garnett found that:
142
Id. at 251-52.
Id. at 238-39, 241.
144
Id. at 241.
145
See id. at 241-42.
146
Id. at 248.
147
Id. at 241.
148
Id. at 252.
149
Id. at 458. Roberts appeared to view the resignation as being evidence of a
“disagreement” between the Commissioners that now enabled him as Umpire to cast his
deciding vote.
150
Id. at 257-60.
151
Id. at 259.
143
2012]
THE EXPLOSION AND THE TESTIMONY: THE WWI SABOTAGE CLAIMS
219
the evidence showed not only that the Kingsland fire began at Wozniak’s
work station, but also that the German side had lied about Wozniak’s
sabotage activities;
Wozniak’s 1933 subpoena testimony (and the documents produced by
him under subpoena) proved he had previously been offered financial
inducements by Germany to give favorable testimony, with the full
knowledge and connivance of Germany’s agent;152
post-1930 discovery had revealed that three affidavits from supposed coworkers of Wozniak, proffered by Germany in 1930 to suggest the
Kingsland fire was accidental, were in fact obtained after Germany paid
significant sums to these witnesses;153
the main alleged German actor in the sabotage, Hinsch, had been willing
to fabricate statements in order to make the affidavit conform with “the
needed proof,” and thus his testimony could not be preferred over
Hilken’s and Herrmann’s;154 and
Hilken’s check stubs produced after the 1930 hearings further confirmed
that payments had been made to German saboteurs, further corroborating
his testimony.155
In sum, Germany’s case was “built upon a mass of false pleadings and false
premises,” all intended to undermine Hilken’s and Herrmann’s admissions of
involvement in sabotage.156 Once those confessions were “reexamined in the light
of the destruction of the perjured evidence directed against them,” it
“irresistibl[y]” followed that the 1930 decision in Kingsland should be “set aside,
revoked and annulled,” and that in light of Wozniak’s evident culpability, that
Germany should be found responsible for the Kingsland fire.157
Turning to the Black Tom case, Commissioner Garnett likewise found that
Germany’s denials of involvement had been perjured and that Hilken’s and
Herrmann’s claims of German complicity were true. The Germany witnesses who
attacked their testimony were guilty of the “grossest forms of prevarication.”158
Garnett found that the “Herrmann message” contained in the 1917 Blue Book
magazine was genuine, and that Germany’s attempts to deny its authenticity were
152
Id. at 267-73.
Id. at 291.
154
Id. at 322.
155
Id. at 336-37.
156
Id. at 348.
157
Id. In a separate and subsequent opinion, the Commission rejected a jurisdictional
challenge to the Claimant’s standing in the Kingsland case, holding that its U.S.
incorporation was determinative of nationality, notwithstanding that its shareholders were
Canadian. Canadian Car & Foundry, 8 R.I.A.A. 460, supra note 9.
158
Sabotage Claims (1939 Decision), supra note 9, at 457.
153
220
THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION
[Vol. 23
“spurious.”159 Thus, “[s]ince the authenticity of the Herrmann message has been
established, the liability of Germany in both the Black Tom case and in the
Kingsland case has now been clearly established by the record, and the cases are
in position for awards.”160
In a brief opinion, Umpire Roberts embraced this analysis, ruling that “the
reason alleged by the United States in its petitions for rehearing,” i.e., “material
fraud,” had been made out, and because “on the record as it now stands the
claimants’ cases are made out,” the petitions for rehearing were granted.161
In subsequent orders, the Commission ordered the principal sum of about $21
million in damages be paid to the various Sabotage claimants.162 As at 1939, the
value of these claims (taking into account interest) was approximately $50
million.163 They were finally settled after World War II, by agreement in 1953, in
which Germany committed to a series of staged payments.164 The last payment
was completed in 1979.165
IV. POST-WAR REVISION PROCEDURES
A. International Judicial Tribunals
Following World War II, the Statute of the new International Court of Justice
(“ICJ”) (including Article 61, empowering the Court to grant revision based on
discovery of a “new fact”) largely mirrored that of the PCIJ.166 During the history
of the ICJ, three revision applications have been made: two (Tunisia and El
Salvador) seeking to vary a prior boundary delimitation based on supposedly new
evidence, and the other (the Bosnian Genocide case) seeking to reopen a 1996
ruling that the ICJ had jurisdiction to hear and determine claims against Serbia in
connection with the Srebrenica massacre.167 In each case, revision was denied.
159
Id. at 363, 401. Moreover, Garnett found that Hilken’s claims concerning the
discovery and provenance of the magazine were properly corroborated by other witnesses.
Id. at 374-77. Garnett further observed that (1) the expert work done on Germany’s
behalf by the forensic examiner Mr. Osborn, was unreliable, id. at 412, 423-24; and (2)
subpoena testimony taken under the 1933 Act, as well as other evidence, had likewise
undermined Germany’s other evidentiary efforts to suggest the Blue Book magazine was a
recent fabrication, id. at 413-54.
160
Id. at 458.
161
Id. at 459.
162
THE DETONATORS, supra note 1, at 273.
163
Id.
164
WITCOVER, supra note 1, at 310.
165
Id.
166
See supra note 15 and accompanying text.
167
See Application for Revision of the Judgment of 11 July 1996 in the Case
Concerning Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections
(Yugoslavia v. Bosn. & Herz.), Judgment, 2003 I.C.J. 7 (Feb. 3) [hereinafter Bosnia
(Revision)]; Application for Revision of the Judgment of 11 September 1992 in the Case
2012]
THE EXPLOSION AND THE TESTIMONY: THE WWI SABOTAGE CLAIMS
221
Commentators have often warned that untrammeled use of the revision procedure
would undermine res judicata and confidence in the ICJ decision-making
process.168
Other international judicial tribunals, including the European Court of Human
Rights, European Court of Justice, and the tribunals dealing with human rights
abuses in Yugoslavia, Rwanda and Sierra Leone, have similar revision procedures
in their statutes each authorizing revision only where decisive new facts emerge,
but excluding facts overlooked through “negligence.”169 Such powers have
generally been construed narrowly. In McGinley, the European Court of Human
Rights stated:
The Court notes the embodiment of the principle of the finality of judgments in
the present Article 44 of the [1951 European Convention on Human Rights] and
recalls that, insofar as it calls into question the final character of judgments of the
Court, the possibility of revision is considered to be an exceptional procedure.
Requests for revision of judgments are therefore to be subjected to strict
170
scrutiny.
Concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:
Nicaragua intervening) (El Salv. v. Hond.), Judgment, 2003 I.C.J. 392 (Dec. 18)
[hereinafter El Salvador (Revision)]; Application for Revision and Interpretation of the
Judgment of 24 February 1982 in the Case Concerning the Continental Shelf
(Tunisia/Libyan Arab Jamahiriya) (Tunis. v. Libyan Arab Jamahiriya), Judgment, 1985
I.C.J. 192 (Dec. 10) [hereinafter Tunisia (Revision)].
168
3 SHABTAI ROSENNE, THE LAW AND PRACTICE OF THE INTERNATIONAL COURT
1920-2005, at 1613 (4th ed. 2006) (emphasizing the exceptional nature of the remedy of
revision “as possibly impairing the stability of the jural relations established by the res
judicata”); W. MICHAEL REISMAN, NULLITY AND REVISION: THE REVIEW AND
ENFORCEMENT OF INTERNATIONAL JUDGMENTS AND AWARDS 219-20 (1971) (“While
interpretation attempts to sustain a myth of finality, revision incontrovertibly destroys it”);
D.W. Bowett, Res Judicata and the Limits of Rectification of Decisions by International
Tribunals, 8 AFR. J. INT’L & COMP. L. 577, 577 (1996) (warning that the “respect which
States show for awards would be undermined if the awards lacked finality and binding
force”).
169
See Statute of the European Court of Justice, Art. 44; Rules of the European Court
of Human Rights, R. 80; Statute of the International Criminal Tribunal for the Former
Yugoslavia, Art. 26; Statute of the International Criminal Tribunal for Rwanda, Art. 25;
Rome Statute of the International Criminal Court, Art. 84; Statute of the Special Court for
Sierra Leone, Art. 21; Statute of the United Nations Dispute Tribunal, Arts. 11, 12(1);
International Tribunal for the Law of the Sea, Rules of the Tribunal, Art. 127.
170
McGinley & Egan v. United Kingdom, Judgment (Revision), 2000-I Eur. Ct. H.R.
321, ¶ 30 (Jan. 28) (emphasis added); accord Gustafsson v. Sweden, Judgment (Revision),
1998-V Eur. Ct. H.R. 2084, ¶ 25 (July 30); Pardo v. France, Judgment (Revision), 1996III Eur. Ct. H.R. 860, ¶ 21 (July 10); see also Case C-255/06, Yeda Tarim ve Otomotiv
Sanayi ve Ticaret A v. Council, Judgment, 2009 E.C.R.I-53, ¶ 17 . 2 (“In the light of the
exceptional nature of the revision procedure, the conditions governing the admissibility of
an application for revision of a judgment or of an order . . . are to be interpreted strictly”);
Case 267/80, Riseria Modenese Srl v. Council, Judgment, 1985 E.C.R. 3499, ¶ 10 (“The
222
THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION
[Vol. 23
B. Before International Arbitral Tribunals
In 1958, in its Model Rules of Arbitral Procedure, the International Law
Commission proposed to give tribunals a revision power “on the ground of the
discovery of some fact of such a nature as to constitute a decisive factor, provided
that when the award was rendered that fact was unknown to the tribunal and to the
party requesting revision, and that such ignorance was not due to the negligence
of the party requesting revision.”171 It set a deadline of “six months” after
discovery of the new fact,172 and empowered the tribunal to grant a “stay” of
enforcement of the original award, pending a hearing on revision.173
This proved influential in drafting Article 51 of the ICSID Convention:
(1) Either party may request revision of the award by an
application in writing addressed to the Secretary-General on
the ground of discovery of some fact of such a nature as
decisively to affect the award, provided that when the award
was rendered that fact was unknown to the Tribunal and to
the applicant and that the applicant’s ignorance of that fact
was not due to negligence.
(2) The application shall be made within 90 days after the
discovery of such fact and in any event within three years
after the date on which the award was rendered.
(3) The request shall, if possible, be submitted to the Tribunal
which rendered the award. If this shall not be possible, a new
Tribunal shall be constituted in accordance with Section 2 of
this Chapter.174
Article 51 exists alongside two other post-award procedures, “interpretation”
of an award under Article 50 and “annulment” under Article 52, each a limited
exception to Article 53’s affirmative requirement on parties to honor an ICSID
award.175
Consistent with ICJ jurisprudence, the Pey Casado tribunal (the only ICSID
tribunal to render an Article 51 decision) stressed that “revision is not an appeal
strictness of [the conditions for revision] is due to the fact that an application for revision
is not a means of appeal but an exceptional review procedure which may render
inapplicable the principle of res judicata”).
171
INT’L LAW COMMISSION, MODEL RULES ON ARBITRAL PROCEDURE (1958), Art.
38(1).
172
Id. at Art. 38(2).
173
Id. at Art. 38(7).
174
ICSID Convention, Regulations and Rules, Art. 51.
175
See Aron Broches, Observations on the Finality of ICSID Awards, 6 ICSID REV.FOREIGN INVESTMENT L.J. 321, 324 (1991). As Broches commented, Article 53
represents an affirmation both of pacta sunt servanda (the principle that agreements are
meant to be fulfilled in good faith) and res judicata.
2012]
THE EXPLOSION AND THE TESTIMONY: THE WWI SABOTAGE CLAIMS
223
against the award.”176 Commentators have likewise urged caution in applying
Article 51, on the grounds it detracts from the principle of finality.177
Article 51 of the ICSID Convention has not yet been successfully invoked.
The applicant in Pey Casado was unable to persuade the tribunal that the alleged
“new fact” (a new piece of information supposedly affecting quantum) satisfied
the “new fact” requirement.178 Applications for revision were made by the
respondent host States in the cases of Siemens AG v. Argentina, American
Manufacturing & Trading v. Zaire, and the twin cases of Kardassopoulos and
Fuchs v. Georgia,179 but all were withdrawn prior to any adjudication.
V. REVISION IN MODERN INTERNATIONAL PRACTICE
A. Procedures
Most revision procedures contemplate that the application will be heard by the
original tribunal;180 this represents a significant difference from annulment (which,
in the case of ICSID, is heard by a separate three-person committee).181 In ICJ
jurisprudence, there appears to be support for the view that the admissibility of a
revision application is to be determined ahead of the merits of the application
itself;182 in all events, the advocates of a “stringent” approach urge that the
stringency be applied at both the merits and admissibility stages.
The Pey Casado case indicates that the burden of proving the elements of
revision lies with the applicant;183 moreover, tribunals in that and other cases have
176
Pey Casado v. Chile, No. ARB/98/2, Decision ¶ 14 (ICSID Nov. 18, 2009)
(original French text) (la révision n’est pas un appel de la sentence) [hereinafter Pey
Casado (Revision)]. The Pey Casado tribunal also indicated that ICJ jurisprudence on
revision could guide the interpretation of this provision. Id. ¶ 15.
177
See Richard Kreindler, Applications for “Revision” in Investment Arbitrations:
Selected Current Issues, in LIBER AMERICORUM BERNARDO CREMADES 679 (M.A.
Fernandez-Ballesteros & David Arias eds., 2010); Marie Louise Seelig & Anna Giulia
Tevini, Revision Proceedings Under the ICSID Convention: Suggestions for a Possible
Interpretation of the Prerequisites of Article 51 of the ICSID Convention, 26 ARB. INT’L
467, 470-71 (2010) (arguing that revision is “exceptional” and, unless applied with the
“requisite stringency,” may “impair[] the stability of juridical relations and legal security”
or encourage meritless applications, leading to “an undesirable erosion of . . . trust in the
finality of international judgments, and thus in the proper functioning and relevance of the
respective dispute settlement mechanism in its entirety”).
178
See Pey Casado (Revision) ¶ 52 (“applicants have not demonstrated the existence
in this case of all the conditions prescribed by Article 51(1)”).
179
The author represented the Investors in Kardassopoulos and Fuchs.
180
See, e.g., ICSID Convention, Art. 51(3).
181
Id. Art. 52(3).
182
Seelig & Tevini, supra note 177, at 469.
183
Pey Casado (Revision) ¶¶ 15-16; see also ICSID Rules of Procedure for
Arbitration Proceedings, Rule 50(1)(c)(ii) (requiring that a revision application
demonstrate the existence of the relevant factors); cf. Prosecutor v. Deliç, Case No. IT-96-
224
THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION
[Vol. 23
stressed that the co-requisites requirement of showing grounds for revision are
separate and independent, and that failure to prove one such element results in
failure of the application.184
Article 50(4) of the ICSID Convention provides the Tribunal with the power
to stay enforcement pending the revision application. Schreuer commented that
this power would likely be exercised according to the same principles developed
in granting stays pending annulment under Article 52(5); existing practice (e.g.
Pey Casado) supports this.185 In other words, a revision tribunal will have the
power to either stay a case completely pending revision, or make a stay
conditional on the host state (or losing party) posting a bond to secure future
compliance with the award, in the event revision is not granted.
B. Discovery of a New “Fact”
The party seeking revision bears the burden of proving there has recently been
discovered a new “fact” that would have had a “decisive” effect on the original
award. Mere “allegations” obviously are not sufficient; the “fact” must be proven
as such.186 Moreover, legal contentions or subjective interpretations of past events
are not “facts.”187
In Pey Casado, the required standard of proof was described as “convincing”
proof or evidence.188 Thus, in Niyitegeka, the International Criminal Tribunal for
Rwanda dismissed a case where the witness proffering the “new fact” had
submitted a statement containing “an inherent contradiction which undermines the
credibility of its author . . . as well as the probative value of the affidavit itself.”189
21-R-R119, Decision on Motion for Review ¶ 17 (ICTY Apr. 25, 2002) (applicant bears
the “burden” of proving the revision “criteria”).
184
See Pey Casado (Revision) ¶ 23; see also Bosnia (Revision) ¶ 17 (“The Court
observes that an application for revision is admissible only if each of the conditions laid down
in Article 61 [of the ICJ Statute] is satisfied. If any one of them is not met, the application
must be dismissed.”); El Salvador (Revision) ¶ 20 (same); Tunisia (Revision) ¶ 29.
185
CHRISTOPH H. SCHREUER ET AL., THE ICSID CONVENTION: A COMMENTARY 887
(2009) (noting Article 51(4) is “materially identical” to Article 52(5) and therefore
appears to be governed by the same principles); Pey Casado v. Chile, No. ARB/98/2,
Decision on Application for a Stay of Enforcement ¶ 2 (ICSID May 5, 2010).
186
See Seelig & Tevini, supra note 177, at 481 (“[A]n applicant must prove the
existence of a new fact, and not merely the existence of allegations respecting such
alleged fact”).
187
See Case 116/78, Bellintani v. Comm’n, Judgment, 1980 E.C.R. 23, ¶ 7 (holding
that the “interpretation” of certain administrative provisions was “not a ‘new fact’”).
188
Pey Casado (Revision) ¶ 45; see also Kreindler, supra note 177, at 690 (arguing
“the applicant must adduce clear and convincing evidence, even beyond a reasonable
doubt . . . of the existence of such new fact – and not merely of the existence of
allegations respecting such alleged new fact”).
189
Niyitegeka v. Prosecutor, Case No. ICTR-96-14-R, Decision on Request for
Review ¶ 27 (ICTR June 30, 2006).
2012]
THE EXPLOSION AND THE TESTIMONY: THE WWI SABOTAGE CLAIMS
225
The Sabotage Claims remain perhaps the best example of such a fact.
Revision was granted only after a comprehensive documented case was presented,
along with a welter of documents passing between the accused German agents,
which eventually proved conclusively that they had committed perjury in the
original hearing before the Commission.
C. Fact Must Pre-Date the Award
It must also be shown that the fact must have existed at the time of the original
decision. This was fatal in Battus,190 and also in Bosnia (Revision), where the ICJ
held:
[Article 61] refer[s] to a fact existing at the time when the judgment was given
and discovered subsequently. A fact which occurs several years after a judgment
has been given is not a “new” fact within the meaning of Article 61; this remains
191
the case irrespective of the legal consequences that such a fact may have.
D. “New Fact” Must Have “Decisive” Impact
To be “decisive,” the fact must have caused the original award to be
materially different, had it been known at the time.192 Thus, the fact (if proven)
must be viewed in the total context of the case.193 Arguably the Sabotage Claims
provide the prime, if not the only, example of such a fact: the U.S. side proved
perjury and fraud in the original proceeding.
E. Movant Must Not Have Been Negligent
“Revision is not an appropriate procedure to remedy careless preparation and
presentation of the case.”194 It must be shown that the supposedly “new fact” was
completely unknown to the applicant at the time of the main hearing. As the ECJ
stated in Bellintani:
190
See supra note 21.
Bosnia (Revision) ¶ 67; see also Secretariat, Int’l Law Comm’n, Commentary on
the Draft Convention on Arbitral Procedure 102, U.N. Doc. A/CN.4/92, U.N. Sales No.
1955.V.1 (1955) (“The so-called ‘new fact’ justifying revision does not embrace facts
occurring subsequently to the award. The fact must be one which had occurred but which
was unknown at the time of the award.”); CHENG, supra note 10, at 365 (“Evidence of a
new fact which has come into existence only after the decision is, therefore, inadmissible
as a ground for revision”).
192
De Neuflize Case at 632.
193
El Salvador (Revision) ¶ 58.
194
SCHREUER ET AL., supra note 185, at 884-85; cf. Deliç ¶ 15 (revision “is not
designed for the purpose of allowing parties to remedy their own failings and oversights
during trial”); see also Zimmermann & Geiss, supra note 12, at 1323 (arguing that “[i]f
careful preparation of the case would have avoided the situation from the beginning, the
applicant is . . . barred from having recourse to revision” under ICJ Article 61).
191
226
THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION
[Vol. 23
The first of these conditions is the total absence of knowledge on the part of the
Court and the applicant of the existence of a fact prior to the delivery of the
judgment; this requirement is not therefore satisfied if the fact in question has
been referred to in any manner, or simply known even if not expressly referred to
195
in the course of the proceedings . . . .
The negligence requirement subjects every applicant to a standard of “due
diligence”196 which “imposes the duty to investigate and to undertake every
reasonable effort to become aware of pre-existing facts.”197 Tribunals may expect
an applicant to explain why it was only possible to discover the new fact
belatedly, especially if it was in the interest of the applicant to discover the
relevant fact.198 The burden of diligence appears to be higher where the “new
fact” is central to a party’s position. In Tunisia (Revision), the ICJ commented:
Normal diligence would require that, when sending a delegation to negotiate a
continental shelf delimitation, following the grant by each side of neighbouring
or conflicting concessions, a State should first try to learn the exact co-ordinates
of the other party’s concession. Furthermore, it is to be expected that a State
would not assert that such concession extended to its own area of continental
shelf without knowing, or making efforts to discover, the exact limits of the
199
concession.
For these purposes, “[i]t has been suggested that attribution of knowledge of a
fact to a Contracting State may entail application by analogy of the ILC Articles
on State Responsibility,” meaning that the “knowledge” of the State includes all
knowledge imputed to it through its organs and representatives.200 It has been
suggested that “the knowledge of State organs should be considered as knowledge
of the State, but in particular the knowledge of those persons who had represented
the applicant in the original proceedings.”201
195
Bellintani ¶ 2 (emphasis added); see also Deliç ¶ 10 (“[I]t is necessary for the
moving party to show that the new fact was not known to it at the time of the original
proceedings”).
196
Deliç ¶¶ 10, 17.
197
Zimmermann & Geiss, supra note 12, at 1323 (emphasis omitted). Since “newly
discovered facts may be brought to the tribunal’s attention right up to the moment the
award is signed,” Schreuer argues that “a party’s failure to draw the tribunal’s attention to
a decisive fact where it had the opportunity to do so at any time before the award’s
signature would result in the inadmissibility of an application for revision.” SCHREUER ET
AL., supra note 185, at 884 (emphasis added).
198
For example, in Tunisia (Revision), the ICJ remarked that the boundary coordinates had been obtainable and that it had been in Tunisia’s “own interests to ascertain
them.” Tunisia (Revision) ¶¶ 24, 28.
199
Id. ¶ 27 (emphasis added).
200
SCHREUER ET AL., supra note 185, at 884; see also Int’l Law Comm’n, Draft
Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries
(2001), reprinted in 2 Y.B. INT’L L. COMM’N (2001).
201
Zimmermann & Geiss, supra note 12, at 1322 (emphasis added) (footnote omitted).
2012]
THE EXPLOSION AND THE TESTIMONY: THE WWI SABOTAGE CLAIMS
227
The burden of showing non-negligence also becomes difficult if the applicant
has been put on notice of the possibility of the new fact.202 It has also been
suggested that an applicant “must show that it sought to make appropriate use of
all mechanisms of protection and compulsion available” under the applicable
tribunal rules.203
The 1932 decision in the Sabotage Claims arguably illustrates that, where a
revision applicant had plentiful time to prepare the case for the original
proceedings “the non-discovery of some essential fact gives rise to at least a
presumption of negligence.”204 Some cases go further: in Naletili , where the
new fact emanates from a witness who testified at the original trial, the tribunal
appears to have drawn an inference of a lack of due diligence.205
F. Timing
Most revision procedures impose a time limit for the bringing of revision
application. Under ICSID Convention Article 50(1), it is no later than three
months from “discovery” and in all events no later than three years from the
award. Jurisprudence on these limitation periods is scarce, but on their face they
appear to bar untimely submissions. This once again reflects that “[a]s a general
principle, the ICSID Convention, also as in the case of the ICJ Statute, ranks the
importance of the finality of the award over and above the justice of the award”
even if the result can occasionally seem harsh.206
VI. AN INHERENT POWER TO REVIEW?
The 1933 ruling in Sabotage Claims that the tribunal had an “inherent power”
to reopen an award, if it had been procured by fraud, has proven controversial,
with one commentator venturing to suggest it was “highly unusual and will
probably not be followed.”207 Perhaps the clearest other instance was the 1997
Genie Lacayo case, in which the Inter-American Court of Human Rights held that,
although its rules of procedure were silent on the issue, it could review past
202
See McGinley ¶ 36 (“[W]hile copies of the correspondence upon which the
revision request was based may not have been actually obtained by the applicants until
after the delivery of the original judgment on 9 June 1998, they manifestly were on notice
in August 1996 of the existence of the correspondence”).
203
Niyitegeka ¶ 6(c) (internal quotation marks omitted); see also Sabotage Claims
(1933 Decision), supra note 8, at 189.
204
CHENG, supra note 10, at 368. At the same time, Schreuer acknowledges the
comment of Broches, during the drafting of Convention, that in some situations a tribunal
might be prepared to presume that the applicant was ignorant of a particular fact.
SCHREUER ET AL., supra note 185, at 884-85.
205
Mladen Naletili v. Prosecutor, Case No. IT-98-34-R, Decision on Request for
Review ¶ 26 (ICTY Mar. 19, 2009).
206
Kreindler, supra note 177, at 682 (footnote omitted).
207
Bowett, supra note 168, at 590 n.45.
228
THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION
[Vol. 23
decisions upon “discovery of a fact which, had it been known at the time the
judgment was delivered, would have altered its outcome, or which would
demonstrate the existence of a substantive defect in the judgment.”208 It stressed,
however, that this power was to applied “restrictive[ly].”209
Within the ICSID system, Article 51 appears to be the only means of
introducing “new” evidence following an award. In RSM v. Grenada, an Article
52 ICSID annulment was requested by the investor (the losing party) to consider
new evidence of bribery by the host state to prove allegations that had failed
before the original tribunal. Rejecting this, the committee held that Article 51 was
the sole avenue for presenting such material.210
In its early jurisprudence, the individual Chambers of the Iran-U.S. Claims
Tribunal left open that revision may be available in “exceptional circumstances.”
In Ram International, Chamber One held that it had inherent power to consider an
application by the Iranian side (the Air Force) based on claims that the investor
had obtained a prior award through “forged documents and perjurious
testimony.”211 In Birnbaum, Chamber Two sounded a more cautionary note: It
rejected a petition for rehearing but “[did] not exclude that, apart from fraud, a
208
Genie Lacayo v. Nicaragua, Application for Judicial Review of the Judgment of
Merits, Reparations and Costs, Order ¶ 10 (Inter-Am. Ct. H.R. Sept. 13, 1997); see also
id. (noting “innumerable references in legal writings to the remedy of revision as an
exceptional recourse for preventing a res judicata from maintaining a patently unjust
situation”); id. ¶ 12 (noting that a judgment may only be impugned “for exceptional
reasons, such as those involving documents the existence of which was unknown at the
time the judgment was delivered; documentary or testimonial evidence or confessions in a
judgment that has acquired the effect of a final judgment and is later found to be false;
when there has been prevarication, bribery, violence, or fraud, and facts subsequently
proven to be false, such as a person having been declared missing and found to be alive”).
On the facts, this showing was not made.
209
Id. ¶ 11. Additionally, in 1954, the ICJ issued an advisory opinion about the
awards of the United Nations Administrative Tribunal, in which it recognized the tribunal
might possess power to “revis[e] a judgment in special circumstances when new facts of
decisive importance have been discovered.” Effect of Awards of Compensation Made by the
United Nations Administrative Tribunal, Advisory Opinion, 1954 I.C.J. 47, 55 (July 13).
210
RSM Prod. Corp. v. Grenada, No. ARB/05/14, Decision on the Application for a
Preliminary Ruling ¶¶ 17, 21 (ICSID Dec. 7, 2009); see also RSM Prod. Corp. v.
Grenada, No. ARB/10/6, Award ¶ 7.1.26 (ICSID Dec 10, 2010) (rejecting a subsequent
attempt to relitigate the investor’s grievances via a BIT claim).
211
Ram Int’l Indus., Inc. v. Air Force of the Islamic Republic of Iran, Decision ¶ 7,
29 Iran-U.S. Cl. Trib. Rep. 383 (Dec. 28, 1993). The Chamber, while noting that the
Claims Settlement Declaration did not contain an express revision procedure, looked to
past precedent, including Sabotage Claims, as supporting an inherent power to revise
“based upon the discovery of some fact of such a nature as to be a decisive factor.”
Id. ¶¶ 18, 19, 20. But on examination of the evidence, the Chamber found that the
prerequisites were not satisfied.
2012]
THE EXPLOSION AND THE TESTIMONY: THE WWI SABOTAGE CLAIMS
229
similar exceptional and serious ground or grounds might possibly constitute the
basis for an application for the revision of its Awards.”212
In 2011, however, the full tribunal rejected a revision application in Case A3.
Iran sought to revisit the full tribunal’s prior decision denying Iran’s claims for
losses suffered as a result of the United States’ refusal, in 1981, to allow the
export of Iranian assets located in the United States. Although Iran argued that
the previous decision was tainted by “fundamental errors of procedure” and
“manifest errors of law,” the tribunal held that absent an express review procedure
in its rules of procedure, no “inherent power” of review could be inferred.213 Only
within such a “modalit[y]” could the proper criteria of revision be assessed “with
the proper degree of rigor.”214 It further remarked that, even in tribunals when
revision was permitted, it was not generally available as a means for rearguing
“manifest errors of law” or “fundamental errors of procedure.”215 Notably,
however, the tribunal made clear that it was not opining on situations involving
“fraud or perjury,” and was not therefore expressing a view on whether a decision
procured by such means is subject to challenge.216
Case A3 appears to be at odds with (indeed arguably rejects) the 1933
Sabotage Claims holding that “every” international tribunal has an “inherent”
power to revise its prior awards. While some might try to harmonize the two by
interpreting Sabotage Claims as covering decisions procured by fraud (whereas
Case A3 does not appear to involve fraud allegations), or distinguish Case A3 on
the grounds it was essentially dealing with a reargument motion, others might not
find this distinction satisfactory, particularly given that modern revision
procedures, such as Article 51 of the ICSID Convention and similar instruments,
do not treat fraud cases as subject to special rules. Case A3 thus suggests that if
the constituent statute does not include revision procedures, there is no “reserve”
or “inherent” power to revise awards.
212
Birnbaum v. Islamic Republic of Iran, Decision ¶ 19, 31 Iran-U.S. Cl. Trib. Rep.
287 (Dec. 14, 1995); see also Islamic Republic of Iran v. United States, Award ¶ 64 n.6,
34 Iran-U.S. Cl. Trib. Rep. 39 (June 5, 1998) (“[N]o tribunal can declare itself immune
from procedural error or the possibility of fraud, forgery, or perjury that it may not
detect”). Birnbaum added, however, that in a modern case, “the existence of express rules
providing that the award is ‘final and binding,’ coupled with the silence of the contracting
Parties concerning the possibility of revision, makes it difficult to conclude that any
inherent power to revise a final award exists.” Birnbaum ¶ 17.
213
Islamic Republic of Iran v. United States, Cases Nos. A3, A8, A9, A14 & B61,
Full Tribunal Decision ¶¶ 2, 64 (Iran-U.S. Claims Trib. July 1, 2011).
214
Id. ¶ 64.
215
Id. ¶ 65; see also id. ¶ 45 (even when authorized, revision was an extraordinary
remedy to be applied sparingly).
216
Id. ¶ 64 n.105. The tribunal noted the opinion of some writers that “‘[a]
judgment, which in principle calls for the greatest respect, will not be upheld if it is the
result of fraud.’” Id. (quoting CHENG, supra note 10, at 165).
230
THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION
[Vol. 23
VII. CONCLUSIONS
In analyzing the Sabotage Claims, one should also bear in mind their unique
setting. This was a standing commission, not an ad hoc body. There were severe
forensic shortcomings: so much depended upon affidavit testimony – averments
by the “turncoat” saboteurs and denials by the other Germans – that, at first, it was
easy for the German agent to isolate and pick apart the few pieces of
contemporaneous documentary evidence (such as the 1917 magazine) that the
Americans had initially been able to marshal.
The procedural wrinkles also cannot be ignored.
The ex parte
communications with the arbitrators seem to have had unfortunate consequences
on at least one occasion.217 There is also the complication that the final decision
in 1939 was an award of a two-person tribunal, because of the German
Commissioner’s resignation.
Yet the Sabotage Claims remain noteworthy to today’s practitioners, if only
because they represent one of the few (arguably the only) instances where an
international arbitral tribunal set aside its prior award and granted revision. The
particular facts – a dramatic espionage setting worthy of Sidney Reilly or even
Indiana Jones – might not repeat itself. But even in the comparatively sedate
setting of investment treaty arbitration, the Mixed Claims Commission’s analysis
of the “new facts” presented, and its comments about party negligence, remain
relevant in applying procedures such as Article 51 of the ICSID Convention.
217
See supra notes 136-37 and accompanying text.