War Crimes

War Crimes. Defined largely by international treaties, conventions, and tribunals, war crimes generally fall into one of three categories: crimes against peace; crimes against humanity; and conventional war crimes, which involve egregious violations of the customs and laws of war. They are based on the assumptions that aggressive war and certain actions by civilian officials or military personnel in war can be limited or at least punished.

War crimes differ from conventional military crimes, criminal violations of codes of military law, or military justice prosecuted by a country's military against violators in its own military service. Few countries have tried their own military personnel for war crimes (although armed services have tried their own members for violations which in other circumstances would be called war crimes).

Enemy soldiers and political leaders have long been punished with or without trial by the victors for heinous acts. However, only in modern times have war crimes been formally defined and made statutory offenses. Murder and maltreatment of prisoners of war (POWs) was declared a crime in 1792 by the National Assembly in Revolutionary France. In the American Civil War, the U.S. War Department in 1863 issued General Order No. 100, a code of military conduct toward enemy civilians and POWs (drafted by Professor Francis Lieber of Columbia College). During the war, both sides punished some of their own soldiers for military crimes, but only one person was tried and executed for war crimes—Confederate Capt. Henry Wirz, commander of the infamous POW camp at Andersonville, Georgia, who was held responsible for the deaths of thousands of captured Union soldiers.

In the Philippine War (1899–1902), the U.S. Army tried several officers by courts‐martial for offenses that were violations of the laws and customs of war. There was a congressional investigation of U.S. Army officers for allegedly mistreating prisoners. (Fighting in the Philippines had devolved into guerrilla warfare not greatly dissimilar to that of the Plains Indians Wars in the United States a few decades earlier.)

The international community began to codify the laws of war in the nineteenth and early twentieth centuries as weapons grew more destructive, mass armies were created, and industrialized warfare began to blur the lines between combatant and noncombatant. The Geneva Conventions (1864) adopted agreements to protect wounded soldiers; the Hague Peace Conferences (1899, 1907) prohibited the use of certain weapons; subsequent Geneva Conventions in 1906, 1929, and 1949 expanded the laws of war as they applied to civilians, POWs, and sick and wounded military personnel.

In 1919, following World War I, the victorious Allies created a Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties. Article 227 of the Treaty of Versailles (1919) arraigned the former German emperor, Wilhelm II, “for a supreme offense against international morality and the sanctity of treaties,” and provided for his trial by a special Allied court. But since Wilhelm had abdicated and fled to the neutral Netherlands, which refused to surrender him, the trial never occurred. In Article 228 of the peace treaty, Germany recognized the Allies' right to try those suspected of war crimes (such as the alleged atrocities in Belgium). The Allies allowed the new Weimar Republic to try the cases. Although the results in the polarized German republic were farcical, the Allied action of 1919 of deciding to hold individuals accountable to an international body set an important precedent.

During World War II, the barbarities perpetrated by Nazi Germany led the Allies in the Declaration of Moscow (1943) to assert firmly that those responsible for atrocities committed during the war would be tried and punished. In August 1944, the Allies signed the London Agreement establishing an International Military Tribunal to try accused Axis war criminals not only for conventional war crimes, such as brutal treatment of POWs, but also for waging aggressive war and committing crimes against peace and against humanity.

The International Military Tribunal, composed of members from Britain, France, the Soviet Union, and the United States, sat in Nuremberg, a former center of Nazi Party activity, from November 1945 to October 1946. The original twenty‐four defendants at the Nuremberg Trials included many of the surviving leaders of the Nazi regime. (Adolf Hitler, Propaganda Minister Joseph Goebbels, and Gestapo chief Heinrich Himmler had committed suicide.) Only three defendants were acquitted; of the rest, twelve were sentenced to death and hanged (the most prominent among them, Hermann Goering, a longtime Nazi leader and commander of the German air forces, committed suicide by swallowing cyanide hours before he was to be hanged). Three were sentenced to life imprisonment. And four others, including Albert Speer, the armaments minister, were given sentences of ten to twenty years in Spandau Prison, Berlin. Sentences for the indicted German military commanders included: Gens. Wilhelm Keitel and Alfred Jodl, death by hanging; Adm. Erich Raeder, life imprisonment; and Adm. Karl Doenitz, ten years in prison. In addition, in 1945–49, separate military tribunals by each of the Allied occupying powers tried others accused of war crimes. The U.S. military tribunal meeting in Nuremberg tried another 185 prominent Nazis in that period.

At the Potsdam Conference in July 1945, American, British, and Soviet leaders had warned Japan that war criminals would be punished. Consequently, in January 1946, an International Military Tribunal for the Far East was established in Tokyo by the Supreme Commander Allied Powers, Gen. Douglas MacArthur. With judges from each of the eleven countries at war with Japan, the Far Eastern tribunal tried twenty‐eight major Japanese military and civilian leaders between May 1946 and November 1948. The most famous defendant was Gen. Hideki Tojo, prime minister in 1941–44, who had failed in a suicide attempt in August 1945. The others included thirteen generals, a colonel, three admirals, five diplomats, three government bureaucrats, one politician, and an ultranationalist (later declared insane and unfit for trial). Controversially, Emperor Hirohito, in whose name the war had been fought, was exempted because MacArthur believed his trial would trigger massive Japanese resistance to the American occupation. The court held all except two of the defendants guilty of conspiracy to wage aggressive war and all were convicted on other charges of responsibility for war crimes. Tojo and six others were hanged in December 1948. Sixteen defendants were sentenced to life in prison, one man to twenty years, and one to seven years in prison.

Unlike the Nuremberg Trials, some elements of the Tokyo War Crimes Trials remain legally controversial. One was the conviction and execution of Gen. Tomoyuki Yamashita, who was held responsible for barbarous acts against civilians in the defense of Manila in 1944, despite the fact that he had ordered Japanese soldiers to leave the city in an orderly manner and had no idea the atrocities occurred, and regardless of the fact that most of these barbarities had been committed by naval ground troops not under his direct command. MacArthur and the U.S. Supreme Court refused his appeal.

Above all, however, the Tokyo trials have remained controversial for a version of history that even some of the judges admitted was based on a seriously flawed interpretation of Japanese expansionism since the late 1920s, blaming it on a conspiracy of the defendants rather than an essentially incremental, ad hoc expansionism, vigorously debated within Japan, up to the decision for war with the West at the end of 1941.

The Nuremberg Trials had a profound impact on the evolution of international law and concepts of responsibility for war and behavior in war. The tribunal rejected the argument that the trials were ex post facto, asserting that the acts of which the defendants were accused had been considered crimes long before World War II. Furthermore, the results of the trials clearly held individuals, military or civilian, responsible for conduct leading to or during war. The tribunal rejected the contention that the state, not individuals, was responsible for war and other national policies. The tribunal also rejected the defense that the accused were only following orders issued by others. Instead, individuals were held responsible for their actions, although for those found guilty, the tribunal indicated that a person's place in the hierarchy of authority and the nature of those orders could be considered as mitigating circumstances in the determination of sentencing. Consequently, no one was convicted of responsibility for the German bombing of Allied cities or for waging unrestricted submarine warfare.

The Nuremberg principles were upheld by the newly formed United Nations in 1946. Indeed, the UN Charter of 1945 limited resort to war to self‐defense and to UN actions to enforce international security. In 1948, the United Nations prepared a Convention on the Prevention and Punishment of the Crime of Genocide. In 1968, it adopted a convention that removed the statute of limitations from war crimes and crimes against humanity.

In the postwar period, the international community sought to define and codify by treaty the nature of war crimes. The Geneva Conventions of 1949 listed among what were considered “grave breaches” of the laws of war torture and other inhumane treatment. The 1977 Protocol to the Geneva Conventions of 1949 added making civilian populations or individual civilians the object of attack or launching an indiscriminate attack affecting the civilian population.

The 1977 Geneva Protocol provided for the establishment of fact‐finding commissions to investigate reported grave breaches of international law. Some allegations of war crimes have been made since World War II. In the Korean War, they concerned “death marches,” the torture and killing of American POWs by the North Korean military, and maltreatment by Chinese soldiers. In the Vietnam War, the allusions were to the torture and execution of captive soldiers by the Communist Viet Cong and North Vietnamese and of suspected Communists by the South Vietnamese. In violation of the Geneva Convention prohibitions against deliberately exposing POWs to insults and public curiosity, Hanoi authorities also marched captured American aviators through the streets of Hanoi to bolster North Vietnamese morale. But there were also accusations of atrocities committed by U.S. forces. In the Iran‐Iraq War, atrocities were again claimed, including the use of poison gas by Saddam Hussein's army.

None of these or other accusations led to an international fact‐finding commission under the 1977 Geneva Protocol. Rather, if armed forces responded at all to such allegations, they tended to do so by trying individuals in their organizations by court‐martial for breach of their own military or civilian criminal law. In 1971, for example, U.S. Army courts‐martial tried 5 soldiers for murder and 2 officers for murder and dereliction of duty for covering up a massacre of 347 civilians during a military operation in the village of My Lai in South Vietnam in 1968. Only one, Lt. William L. Calley, was convicted. For premeditated murder, he was sentenced to life imprisonment in 1971, but in 1974 a federal court overturned the conviction. An investigation by the army confirmed that the My Lai massacre had occurred and been covered up within the division before being exposed in 1969 by some of the American soldiers who saw it.

With the end of the Cold War, the United Nations began to establish war crimes tribunals to investigate some of the grave breaches of the rules and customs of war in the ethnic and civil wars that erupted during the 1990s. In 1993, the United Nations set up the first UN War Crimes Tribunal in the Hague to try war crimes cases stemming from the civil wars in areas of the former Yugoslavia. In the Bosnian Crisis (1992–95), the tribunal indicted several Bosnian Serbs for war crimes—primarily against Bosnian Muslims—including torture and execution of prisoners of war, the forced relocation (“ethnic cleansing”) and murder of large numbers of civilians. Several of the indicted were arrested by NATO peacekeeping forces, including U.S. troops; however, as late as 1998, the most important of the indicted war criminals, former Bosnian Serb leader Radovan Karadzic, remained at large.

In Africa, as a result of the 1994 slaughter in Rwanda of perhaps 500,000 Tutsi and moderate Hutu civilians and prisoners of war by an extremist Hutu government and military, a UN tribunal sitting in neighboring Tanzania in 1998 handed down the first guilty verdict by an international court for the crime of genocide, and for the first time defined rape as genocidal. Following four years of proceedings, the three‐judge court convicted former Rwandan mayor Jean‐Paul Akayesu of responsibility for the death of more than 2,000 persons and the rape of dozens of Tutsi women in his city, Taba, even though the actual attacks had been carried out by police officers, soldiers, and Hutu militiamen. The court sentenced him to life in prison.

The UN tribunal dismissed several charges against Akayesu that he had violated the Geneva Conventions on the treatment of victims of war, stating that the mayor was not a military figure who could be held accountable under those treaties. However, the establishment of war crimes trials in the late 1990s for Bosnia and Rwanda clearly marked a pivotal moment in international law and laid the legal groundwork for future war crimes prosecutions in UN courts.
[See also Genocide; Holocaust, U.S. War Effort and the; Justice, Military; Laws of War; Prisoner‐of‐War Camps, Civil War; War.]

Bibliography

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Seymour Hersh , Cover‐up, 1972.
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C. Hosoya, et al. eds., The Tokyo War Crimes Trial: An International Symposium, 1986.
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Michael R. Marrus, ed., The Nuremberg War Crimes Trial: A Documentary History, 1997.

Rod Paschall