war crimes

war crimes belong to a separate legal category that has to be distinguished from all other crimes that happen to be committed in wartime. The Interallied War Crimes Tribunal, established in 1945 by the victorious Allied powers, distinguished war crimes, crimes against humanity, and crimes against international peace. The first was mainly concerned with breaches of the Geneva and Hague Conventions committed during the conduct of warfare, and hence offences against prisoners-of-war (POW), offences against non-combatants caught up in the fighting, offences of wanton violence under cover of war. The second concerned campaigns of mass terror, repressions, deportations, and genocide. The third concerned the planning and execution of wars of aggression.

Examples of all these categories of crime can be found in all theatres of the Second World War, although conditions were particularly atrocious on the Eastern Front in Europe and in the mainland campaigns in Asia.

There were important differences in the official attitudes and practices of the various combatant powers. The armies of the western powers—France, Poland, the UK, and later the USA—were ordered to observe the Geneva Conventions. They did not indulge in mass terror or genocide in occupied countries; and they saw themselves as prosecuting a just, defensive war. The most serious accusations of (untried) crimes allegedly committed by the western powers centre on the indiscriminate bombing of civilian targets during the strategic air offensive against Germany and on the transfer of POW to the Soviet Union in 1945 to almost certain death (see Soviet exiles at war).

The armies of the USSR and of imperial Japan did not operate under the same restraints. They did not observe the Conventions; they openly defied international law; they committed crimes against humanity in all countries they occupied; and they repeatedly initiated campaigns of aggression. The list of Soviet crimes includes the mass murder of 26,000 Polish officer POW in the Katyń forest and elsewhere; the deportations and repressions carried out in countries forcibly incorporated into the USSR in 1939–41 and throughout eastern Europe in 1944–5; and the unprovoked invasions of Poland ( 1939), Finland ( 1939), and the Baltic States ( 1940). The Soviet Union was unique in rejecting the POW status of its own soldiers captured by enemy forces. About 1 million ex-Soviet POW, who survived captivity in Germany, were treated as traitors by the NKVD on their return to the USSR in 1945 and sent to the GUlag.

The list of Japanese crimes includes the murder and maltreatment of Allied POW and civilian internees; the genocidal campaigns against civilians during the China incident; the unprovoked attack on the USA at Pearl Harbor ( 1941); and the series of aggressive invasions throughout South-East Asia.

The armies of the Axis, Italy and Germany, generally observed the niceties of international law when fighting against western powers. Elsewhere, they ignored them. There was a marked contrast in Italian conduct between their restraint when facing the British in North Africa, and their depredations in Albania, Greece, Yugoslavia, and especially Abyssinia. Despite notorious lapses, there was a world of difference between the Germans' comportment on the Western Fronts and their heinous behaviour in the east. Many observers noted a difference between the attitudes of the SS and other special Nazi formations, and those of the regular Wehrmacht.

None the less, the catalogue of German crimes is very extensive, covering all known categories. (It filled 23 volumes of the record of the Nuremberg tribunal; documentary evidence took up another 19.) On the Western Front, there were several grave incidents such as the shooting of US prisoners at Malmédy during the Ardennes campaign, or the reprisals taken against villages such as Oradour in France. There were numerous acts of limited repression and deportation against members of the Resistance and especially Jews (see Final Solution); and clear acts of aggression against Belgium, the Netherlands, Denmark, Norway, and France. (The UK declared war on Germany, not vice versa.)

In the east, however, no holds were barred. On 31 August 1939 Hitler specifically ordered his forces to show no mercy in Poland. The strafing of refugees, bombing of civilian targets, the shooting of hostages, and the murder of Jews were commonplace. In the German–Soviet war German soldiers were expressly absolved from crimes which would have been an offence under regular German law; prisoners were not usually taken in combat; political commissars and Jews were shot on sight; and 3–4 million Soviet and Italian captives were systematically starved to death. In Yugoslavia and Greece, partisan warfare inspired atrocities on all sides. Occupied Poland was the main location of OPERATION REINHARD and of other genocidal campaigns. The suppression of the Warsaw rising in 1943 was attended by the slaughter of about 40,000 non-combatants; in the main Warsaw rising of 1944 about 250,000 were killed. The fate of Lidiče and Lezaky was meted out to literally hundreds of villages in Poland, Belorussia, and Ukraine.

The International War Crimes Tribunals were the product of a consistent Allied policy originating in 1942 when the decision was taken to prosecute all enemy war criminals at the end of hostilities. Two main trials were held—one in Nuremberg 1945–7 and the other in Tokyo (see Far East war crimes trials). The Allied organizers were strongly criticized at the time both for failing to entrust proceedings to a neutral court and for the retrospective definition of offences, thereby infringing a basic legal tenet, Nulla poena sine lege (no punishment without law). The main failing, however, lay in the fact that Allied prosecutors were only empowered to consider crimes committed by the defeated enemy. The colossal criminal record of the Soviet Union did not come into the reckoning. When defence lawyers at Nuremberg attempted to draw comparisons with Allied conduct, they were ruled out of order.

Trials for war crimes, collaboration, and genocide continued in several countries for many years after the war. In the Federal Republic of Germany they were staged at regular intervals in the 1950s and 1960s. The State of Israel, which was not in existence during the war, none the less took on the prosecution of crimes connected with the Final Solution (see Eichmann). In France, the trial and sentencing of Klaus Barbie, the ‘Butcher of Lyons’, took place as late as 1987, and the head of the Lyons Milice, Paul Touvier, was in 1994, the first Frenchman to be sentenced for crimes against humanity.

A new wave of war crime investigations began in 1970s with the creation of the Office of Special Investigation (OSI) in Washington. The main instigators were Jewish organizations in the USA, notably the Wiesenthal Center in Los Angeles, which demanded the pursuit of alleged war criminals who had obtained US citizenship through false declarations of their wartime activities. Since most of the offences had occurred in eastern Europe, the Soviet KGB inevitably became a prime source of evidence. Lengthy enquiries led to a number of false accusations, such as those against a resident of Chicago, Frank Waluś, who was later cleared. In 1986 a resident of Cleveland (Ohio), John Demaniuk was administratively extradited for trial in Israel on charges of being the camp guard ‘Ivan the Terrible’ at Treblinka. Demaniuk was convicted in Jerusalem in 1988 in a highly publicized trial, but subsequent evidence threw doubt on the verdict. His appeal was upheld and he was released in September 1993.

Under pressure from the USA, similar war crimes legislation was instituted in Canada, Australia, and the UK. The British War Crimes Act ( 1991) exceptionally limits its competence to crimes ‘committed in Germany or in German-occupied territory’, thereby eliminating the possibility of prosecuting alleged Soviet or other Allied criminals.

Norman Davies