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

Morris Greenspan , The Soldier's Guide to the Laws of War, 1969.
Richard Hammer , The Court‐Martial of Lieutenant Calley, 1971.
R. H. Minear , Victor's Justice: The Tokyo War Crimes Trial, 1971.
S. D. Baily , Prohibitions and Restraints in War, 1972.
Seymour Hersh , Cover‐up, 1972.
James F. Willis , Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War, 1981.
C. Hosoya, et al. eds., The Tokyo War Crimes Trial: An International Symposium, 1986.
Telford Taylor , Anatomy of the Nuremberg Trials: A Personal Memoir, 1992.
George J. Andreopoulos and Mark R. Shulman, eds., The Laws of War: Constraints on Warfare in the Western World, 1994.
Geoffrey Best , War and Law Since 1945, 1994.
Theodor Merron , Comments: War Crimes in Yugoslavia and the Development of International Law, American Journal of International Law, 88 (January 1994), p. 78.
Joseph E. Persico , Nuremberg: Infamy on Trial, 1994.
Michael R. Marrus, ed., The Nuremberg War Crimes Trial: A Documentary History, 1997.

Rod Paschall

War Crimes

BIBLIOGRAPHY

The notion of crimes of war has been known in the Western legal tradition since classical antiquity. For the ancient Greeks it was part of Hellenic customary law that provided some basic if ill-defined norms for the protection of civilians, suppliants, and prisoners in warfare between the Greek states. While this notion has persisted as the “laws and customs of war,” it was only with the incipient development of a body of international law at the end of the nineteenth and beginning of the twentieth centuries that it began to take shape in its modern form as a central category in the body of norms whose aim is to regulate the violence of armed conflict. The “laws and customs of war,” as the name indicates, apply only in the context of armed conflict. As the dual terminology “laws” and “customs” also implies, in the modern period these norms are regarded as having a dual basis. On the one hand, they are defined by the body of statutory law that has developed since the first Hague Conventions adopted around the beginning of the twentieth century. On the other hand, such conventions represent only one source of the international law of armed conflict. The codifications do not exhaust this body of law, which also arises from the customs and usages of warfare as reflected in the practices of nations.

Three major phases of development of the notion of war crimes in the modern period can be identified. The first begins with the adoption of the Hague Conventions of 1899 and 1907, regulating the conduct of hostilities and the employment of various kinds of weapons and modes of warfare. Most immediately relevant to war crimes is the 1907 Hague Convention IV on “The Laws and Customs of War on Land” and particularly its provisions defining the limits of military necessity and limiting the violence that may be employed against cities and other civilian targets (Articles 22–28). While the treatment of prisoners of war is addressed in the Hague Conventions, it was the Geneva Convention of 1929 that provided the basic legal framework for this subject in the pre–World War II (1939–1945) era. While the distinction between “Geneva law” and “Hague law” was widely regarded as fundamental in earlier periods, it has, as we will see, largely ceased to have any relevance in the contemporary period.

The experience of “total war” in the European and Asia-Pacific theaters in World War II involved the total destruction of major civilian centers, the displacement of entire populations, industrialized murder, civilian deaths in the tens of millions, and devastation on a scale hitherto unimagined. Total war led to a widespread recognition that the laws of war had to be revised so as to reflect the exigencies of a new age. The first major step in this direction was taken by the victorious Allies in the creation of two international criminal tribunals in Nuremberg and Tokyo to try German and Japanese military and civilian leaders for crimes against peace, war crimes, and crimes against humanity. The definition of “war crimes” in the Nuremberg Charter provided an important and expansive definition of the scope of such criminal conduct:

Violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.

For the first time governmental and military leaders were held criminally responsible as individuals and punished by the Nuremberg and Tokyo tribunals for their roles in planning, instigating, ordering, or perpetrating such war crimes. In addition, building upon the Nuremberg and Tokyo Charters, the Allies created a legal framework for national war crimes tribunals that convicted thousands of Japanese and German war criminals of war crimes. This step marks the decisive move into the contemporary age of individual accountability for war crimes and other violations of international law regulating armed conflict.

During the same period in the aftermath of World War II, the four Geneva Conventions of 1949 and the Genocide Convention of 1948 also represent major landmarks in the development of the contemporary legal framework regulating armed conflict. The Geneva Conventions of 1949 greatly expanded and refined this framework and also made decisive contributions to the law of war crimes. Particularly grave violations falling within the category of war crimes were designated as “grave breaches” of the conventions. These include: wilful killing; torture or inhuman treatment; biological experiments; unlawful deportation or transfer, taking of hostages, etc. (The 1977 Protocol 1 to the 1949 conventions greatly expands the category of grave breaches, particularly by including various limitations on the conditions under which civilian targets may be made the object of attack.) Further, for the first time the coverage of this body of law was extended to noninternational conflicts. That is, previously war crimes by definition involved violations committed in time of war or serious armed conflicts between nations. The hitherto seemingly inviolable principle of national sovereignty had protected governments from interference with what they did within their own territory to their own citizens. The development of the category of “crimes against humanity” represented one important prong in limiting this principle, and Article 3 of the 1949 Geneva Conventions represented another. The coverage of the 1949 conventions as to war crimes was extended further by the two 1977 protocols to the 1949 conventions, the first covering international conflicts the second internal ones.

Common Article 3, so called because it is found in all four of the 1949 conventions, extends basic minimum protections of international law to purely internal conflicts and thus brings the notion of war crimes into the sphere of the kinds of internal conflicts that have been so prevalent in the post–World War II era. Common Article 3 provides:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

The third phase in the development of the body of law defining and punishing war crimes began with the creation of the Ad Hoc International Criminal Tribunals for Rwanda and the former Yugoslavia (ICTR and ICTY) in 1993–1994. Whereas war crimes had not been punished by international tribunals since Nuremberg and Tokyo, the ICTY and ICTR ushered in an age of the institutionalization of such prosecutions, reaching fulfillment in the creation of the permanent International Criminal Court (ICC) in the Hague in 2002. All three of these bodies have made important contributions to the definition, jurisprudence, and punishment of war crimes, as have the so-called international “hybrid tribunals” in East Timor, Kosovo, Bosnia, Sierra Leone, and Cambodia.

The statutes of all three of these international criminal tribunals include war crimes as one of the major categories of violations of international law within the jurisdiction of these courts. (See, e.g., ICTY Statute Articles 2 and 3; ICC Statute Article 8.) The Appeals Chamber of the ICTY has clarified the relations between the categories of “grave breaches,” other violations of the “laws and customs of war” defined by the Hague and Geneva Conventions, and common Article 3. It has ruled that all of these norms are war crimes and that the previous distinction between “Hague law” and “Geneva law” is no longer relevant. (See, e.g., the Tadic Jursidiction Decision, para. 87, and the Celebici Appeals Judgment, paras. 132–133.)

The statute of the ICC makes this clear in Article 8 by specifying that the category of war crimes includes grave breaches and “other serious violations of the laws and customs of war applicable in international armed conflict” as well as common Article 3 and other “serious violations of international law applicable in non-international armed conflict.” The category of war crimes has thus expanded to encompass a very wide range of offenses committed in international or internal conflicts. These offenses have also become much more clearly defined than in previous eras. In particular, the jurisprudence of these courts has provided authoritative discussions and definitions of the elements of these offenses. This represents an important contribution to the interpretation and applications of such crimes because the post–World War II trials had left them largely undefined. Most recently, the ICC has promulgated the Elements of Crimes, which also includes definitions of each of the key components of all major crimes of war. As the ICC assumes an ever more prominent role in the application of international humanitarian law, its definitions of the elements of war crimes is likely to prove to be of decisive influence.

SEE ALSO Genocide; Holocaust, The; War; World War II

BIBLIOGRAPHY

Detter, Ingrid. 2000. The Law of War, 2nd ed. Cambridge, U.K.: Cambridge University Press.

Neier, Aryeh. 1998. War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice. New York: Times Books.

David Cohen

War Crimes Trials

War crimes are offenses against the laws of engagement of war, such as killing or mistreating civilians or prisoners of war. After World War II (1939–1945), the principle of punishing those involved in war crimes became established although it is a concept that is still evolving in many ways. Suspects are tried by their own civilian or military courts or by international tribunals. Such trials have now been extended to cover genocide and crimes against humanity. Currently many war crimes trials, which tend to be very lengthy complex affairs, are ongoing or planned, such as the one that hears the charges against Saddam Hussein and his followers in Iraq. The first war crimes trials relied mainly on witness statements and documentary evidence . In more recent times, however, forensic science has begun to play a more important role in the prosecution of war crimes.

The Nuremberg Trials of 1945 tried many Nazi leaders, including Hermann Goering and Joachim von Ribbentrop, and were conducted by a tribunal consisting of representatives from Britain, the United States, the U.S.S.R., and France. German dictator Adolf Hitler (1889–1945) escaped trial by committing suicide shortly before the end of the war. Japanese war criminals from World War II were also tried by a tribunal in Tokyo. Large amounts of evidence were brought to bear, showing the extermination of civilians, especially Jews, mistreatment and murder of prisoners of war, looting, and the use of slave labor during the war years.

Nuremberg established a precedent and a model from which lessons could be drawn. Later, several Americans were tried for crimes committed in the Vietnam War and, in the 1990s, the United Nations set up a tribunal in The Hague to gather evidence for prosecutions against those accused of atrocities in the break-up of Yugoslavia. The highest-ranking official to be tried by this court is former Yugoslavian President Slobodan Milosevic, whose trial began in 2002. In the year 2000, rape, which was very common in the Yugoslav conflict, was established as a war crime. Meanwhile another tribunal in Tanzania has been investigating the Hutu massacres of the Tutsis in Rwanda in 1994, and one in Sierra Leone is trying those accused of atrocities during that country's civil war of the 1990s. In 1998, the United Nations General Assembly voted for a permanent international court for trying war crimes. The judges of the International Criminal Court, based in The Hague, were sworn in in 2003, and charged with trying war crimes, genocide, and crimes against humanity.

Modern war crimes trials depend upon witness statements, documentary evidence, and forensic evidence. Much of the forensic work carried out in places such as Bosnia, Afghanistan, and Iraq has involved the investigation of mass graves. This kind of work is very different for the forensic scientist compared to what is required in routine crime investigations. However, the principles of collecting, preserving, and analyzing evidence remain the same, although they are more difficult to achieve. Many places where atrocities have been committed in the recent past are still unsafe, and the investigative agencies must consider the safety of their personnel. There may be logistic problems in transport and in setting up laboratory space and equipment. The investigators attempt to work with local people and take care to respect their customs. There is also no guarantee that the crime scene, most likely a mass grave, has been kept secure and evidence preserved since the atrocities were committed.

An important part of the forensic work done in war crime investigations is identification of people who have disappeared during a conflict. Not only does this provide key trial evidence, but it also brings some comfort and closure to the loved ones of those who have gone. Identified remains can then be given a proper burial. However, there is often a conflict between the needs of the trial and the needs of families. The former require evidence of the scale of the war crime rather than the establishment of the identity of each victim. The family wants to know what happened to the individual.

Establishing identity begins with a physical description of the missing person provided by a close relative or friend. This includes details about the person's physical appearance such as height, hair color, teeth, tattoos, scars, as well as about items they may have been carrying or wearing at the time of their disappearance, such as jewelry, eyeglasses, shoes, and clothing.

Bodies and remains are then exhumed from the mass grave, usually by forensic archaeologists and forensic anthropologists. Documents found on a body may provide a lead for identification. Postmortem (after death) and antemortem (around the time of death ) data can then be compared. Sometimes photographs of clothing worn by the deceased can be identified by the family. In the modern era, DNA analysis can provide confirmation of identity but this is a very expensive way of investigating a mass killing. Teeth and bones survive long after other tissues have decomposed and may yield DNA that can be compared to that of relatives. Such identity investigations are always, necessarily, incomplete. Not all of the bodies originally present in a mass grave will be recovered on exhumation , and not all of these will be identified. Around 30,000 people were missing in Bosnia by the time the conflict there was resolved in 1995. Since then, about 15,000 bodies have been recovered, of which 9,000 have been identified. DNA analysis contributed to identification in around 3,000 cases. The same has been found in the investigation of war crimes in Rwanda where the sheer scale of the killings, half- to three-quarters of a million people, makes a full forensic examination almost impossible. It is possible that forensic science may never uncover the full horror of some war atrocities.

The above approach has been adopted by the International Forensics Program for the Physicians for Human Rights group during its investigation of the 1995 massacre of Srebrenica in Bosnia and has led to the identification of many of the victims. The investigators have exhumed over 400 bodies; many had bullet wounds in the skull and ligatures around the wrists, important physical evidence for a war crimes trial. The Program has carried out similar investigations in many countries around the world including Afghanistan, Israel, Kosovo, and Rwanda.

Other evidence from a mass grave may be important to a war crimes trial. The investigators will try to establish if the victims belonged to a particular religious or ethnic group. This can help define whether the perpetrators are guilty of genocide, the targeting of a specific group in society for destruction. The team will also try to establish patterns in the killing, whether the same methods were used at different sites and whether the killers tried to cover their tracks and destroy evidence. By building a picture of what happened at the various scenes, the investigators may also try to establish if a crime against humanity has been committed. This encompasses a wide range of acts: mass murder, enslavement, deportation, rape, and torture committed on a large scale against civilians. Documentary evidence of planning of such crimes may be found which can back up these forensic findings.

Lessons learned from other forensic investigations of war crimes and crimes against humanity may now be put to work in Iraq. As of April 2005, more than 250 mass graves have been discovered in the country since the removal of Saddam in 2003. Evidence from these sites will be vital in his trial and is also eagerly awaited by Iraqis wanting to know what happened to their loved ones. However, there are huge challenges for the investigators. Saddam's atrocities occurred over a 30-year period and many, if not most, of the corpses will now be badly decomposed. Victims were often transported over hundreds of miles for interrogation and execution, so a geographical link to help in identification is unlikely. Much documentation, which could have provided valuable evidence, has been destroyed or looted. Furthermore, 24-hour security, essential once a forensic investigation is underway, cannot currently be guaranteed at the sites.

The graves themselves have been located either by survivors of the massacres, or by witnesses. In some cases, people have just come across shallow graves. Some Iraqis, wanting to investigate the possible fate of disappeared relatives, started to investigate the graves themselves, but in a disorganized manner that was likely to destroy evidence. Many have since been persuaded to await a professional forensic investigation. While there are moves afoot to set this program in motion, there are huge difficulties involved. The medico-legal system in Iraq is in chaos, because of the war and ongoing conflict. Iraq has many forensic pathologists, but no forensic anthropologists. There is also a tradition of using circumstantial evidence such as documents found on the body, or clothing, for identification rather than dental records or x-rays. There are opportunities for international collaborations to provide support and training to Iraqi forensic scientists. First, however, the basic needs of the discipline need to be attended to. Work has begun on two mass graves, but there is an ongoing problem in protecting the sites to preserve the evidence.

see also Anthropology; Archaeology; Disappeared children of Argentina; DNA mixtures, forensic interpretation of mass graves; Identification of war victims in Croatia and Bosnia.

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

WAR CRIMES

Acts that violate the international laws, treaties, customs, and practices governing military conflict between belligerent states or parties.

War crimes may be committed by a country's regular armed forces, such as its army, navy, or air force, or by irregular armed forces, such as guerrillas and insurgents. Soldiers may be punished for war crimes, as may military and political leaders, members of the judiciary, industrialists, and civilians who are enlisted by a belligerent to contravene the rules of war.

However, isolated instances of terrorism and single acts of rebellion are rarely, if ever, treated as war crimes punishable under the international rules of warfare. Instead, they are ordinarily treated as criminal violations punishable under the domestic laws of the country in which they occur.

Most war crimes fall into one of three categories: crimes against peace, crimes against humanity, and traditional war crimes. Crimes against peace include the planning, commencement, and waging of aggressive war, or war in violation of international agreements. Aggressive war is broadly defined to include any hostile military act that disregards the territorial boundaries of another country, disrespects the political independence of another regime, or otherwise interferes with the sovereignty of an internationally recognized state. Wars fought in self-defense are not aggressive wars.

Following world war ii, for example, the Allies prosecuted a number of leading Nazi officials at the nuremberg trials for crimes against peace. During the war, the Nazis had invaded and occupied a series of sovereign states, including France, Czechoslovakia, Poland, and Austria. Because those invasions were made in an effort to accumulate wealth, power, and territory for the Third Reich, Nazi officials could not claim to be acting in self-defense. Thus, those officials who participated in the planning, initiation, or execution of those invasions were guilty of crimes against peace.

Hermann Göring, chief of the Luftwaffe (the German Air Force), was one Nazi official who was convicted of crimes against peace at the Nuremberg trials. The international military tribunal presiding at Nuremberg, composed of judges selected from the four Allied powers (France, Great Britain, the Soviet Union, and the United States), found that Göring had helped plan and carry out the invasions of Poland and Austria and had ordered the destruction of Rotterdam, Holland, after the city had effectively surrendered.

Crimes against humanity include the deportation, enslavement, persecution, and extermination of certain peoples based on their race, religion, ethnic origin, or some other identifiable characteristic. This category of war crimes was created almost entirely from the catalog of atrocities committed by the Nazi regime in World War II. Although other regimes have since committed horrors of their own, the Nazis established the standard by which the wartime misconduct of all subsequent regimes is now measured.

As part of the Nazi blitzkrieg, the Germans constructed concentration camps around Europe where they gassed, tortured, and incinerated millions of Jews and other persons they deemed impure or subversive to the Aryan race. Millions of others who escaped this fate were deported to Nazi labor camps in occupied countries where they were compelled at gunpoint to work on behalf of the Third Reich. The Nazi leaders who were responsible for implementing this totalitarian system of terror were guilty of crimes against humanity.

Many Nazi leaders were prosecuted for crimes against humanity during the Nuremberg trials. For example, Ernst Kaltenbrunner, head of the Nazi security organization in charge of the gestapo (the German secret police), was convicted and sentenced to death based on evidence that he had authorized the extermination of Jews at concentration camps and ordered the conscription and deportation of civilians to foreign labor camps.

Traditional war crimes consist of those acts that violate the accepted customs, practices, and laws of warfare that have been followed by civilized nations for centuries. These rules of war prescribe the rights and obligations of belligerent states, prisoners of war, and occupying powers, as well as those of combatants and civilians. They also set restrictions on the types of weapons that belligerents may employ during combat. Soldiers, officers, and members of the high command can all be held responsible for violating the accepted customs and practices of war, regardless of whether they issue an order commanding an illegal act or simply follow such an order.

Soldiers, officers, and the high command can also be held responsible for failing to prevent war crimes. Military personnel in a position of authority have an obligation to instruct their subordinates on the customs and practices of war and a duty to supervise and oversee their conduct on the battlefield. A military commander who neglects this duty can be punished for any war crimes committed by his troops. Following World War II, for example, Japanese General Tomoyuki Yamashita was prosecuted and sentenced to death by a U.S. military tribunal in the South Pacific for dereliction of duty in "failing to provide effective control" of his troops who had massacred, raped, and pillaged innocent noncombatant civilians and mistreated U.S. prisoners of war in the Philippines (Christenson 1991, 491).

For more than five centuries, the rules of war have been applied to military conflicts between countries. Until the last decade, many observers contended that the rules of war do not govern hostilities between combatants in civil wars that take place wholly within the territorial boundaries of a single state. However, during the 1990s, the united nations established two international military tribunals to investigate and prosecute war crimes that allegedly took place in the civil wars fought within Bosnia-Herzegovina and Rwanda.

The two tribunals indicted soldiers and other combatants in both countries for committing a litany of war crimes, including the torture of political and military enemies, the programmatic raping of women, and genocide. Although the litigants questioned the jurisdiction and authority of each tribunal, trials proceeded against certain defendants who had been captured. Thus, the theater in which war crimes can be committed and punished has expanded from international military conflicts to intranational civil wars.

In 1998, the United Nations established the international criminal court (ICC) with the signing of the Rome Treaty. The court, which came into force on July 1, 2002, is the first permanent international criminal tribunal. Many countries over the course of many years expressed the need for such a permanent court, but politics during the cold war and other factors prevented its creation. The treaty, however, received widespread international support upon its signing. The ICC is empowered to hear three major types of cases, including genocide, crimes against humanity, and war crimes.

The United States originally signed the treaty on December 31, 2000, but did so with reservations. One claim was that the court could be used to prosecute troops based on the political motivations of other nations. The United States introduced an amendment to the treaty that would have given U.N. security council members the right to veto certain prosecutions, but the amendment was rejected. Even when President bill clinton signed the

treaty, members of his cabinet and members of Congress expressed concerns about the court's powers. In May 2002, President george w. bush instructed the U.S. state department to inform the secretary-general of the United Nations that the United States would not become a party to the treaty.

further readings

Meron, Theodor. 1998. War Crimes Law Comes of Age: Essays. New York: Oxford Univ. Press.

Simpson, Gerry, ed. 2004. War Crimes. Burlington, Vt.: Ashgate/Dartmouth.

Wald, Patricia. 2003. "Trying War Crimes in International Courts." International Journal of Legal Information 31 (summer).

cross-references

Tokyo Trial.

war crimes in international law, violations of the laws of war (see war, laws of ). Those accused have been tried by their own military and civilian courts, by those of their enemy, and by expressly established international tribunals.

The records of the war crimes trials after World War II provide one of the most comprehensive formulations of the concept of war crimes. During that war the Allies agreed to try Axis war criminals. In Aug., 1945, Great Britain, France, the USSR, and the United States established a tribunal at Nuremberg to try military and civilian Axis leaders whose alleged crimes were directed at more than one national group. The trial opened in Nov., 1945. Voluminous evidence was presented to prove the plotting of aggressive warfare, the extermination of civilian populations (especially the Jews), the widespread use of slave labor, the looting of occupied countries, and the maltreatment and murder of prisoners of war. Among those sentenced to death (1946) were Hermann Goering , Joachim von Ribbentrop , and Julius Streicher . Hjalmar Schacht and Franz von Papen were acquitted. The court did not convict Nazi organizations or the German general staff. In 1961, Israel captured, tried, and later executed Adolf Eichmann .

A trial of 28 alleged Japanese war criminals was conducted (1946–47) by an 11-nation tribunal in Tokyo. Evidence similar to that presented against the Nazis brought death sentences to Hideki Tojo and others. The U.S. Supreme Court refused an appeal that was based on the ground that the international court was unlawful. There were many trials in national civil and military courts, including those of the Japanese generals Tomoyuki Yamashita and Masaharu Homma.

Critics have questioned the legal basis of some of the charges at the post–World War II trials. Individuals were found guilty of acts considered legal, or even required, by their nation at the time; such findings represent a violation of the concept of sovereignty . The plotting or carrying out of aggressive war had not been previously and explicitly called criminal, and the judges tended to define it very narrowly. A defendant was generally found guilty only if he had been involved in developing the policy, but not if he had simply carried it out.

Critics have also termed the trials an act of vengeance by the victors and questioned their practical use as a precedent. Personal liability for national action is very difficult to prove conclusively, and a nation will be reluctant to try its own leaders. Therefore, effective prosecution may be possible only if a nation is defeated (and then perhaps only if the documents are captured, as they were after World War II).

Both critics and supporters of the U.S. role in the Vietnam War have justified their positions on the basis of the post–World War II trials. Several Americans were tried for war crimes in this war, and Lt. William Calley was found guilty (see My Lai incident ) of particularly disturbing acts against civilians that for many became emblematic of the horrors of the Vietnam conflict. In the 1990s, in reaction to war atrocities committed by various parties during the breakup of Yugoslavia , the United Nations established a tribunal in The Hague, the Netherlands, and attempted to gather evidence for prosecutions; Serbs, Croats, and Muslims have been charged or tried, including top civilian and military Bosnian Serb and Bosnian Croat leaders. The highest ranking official to be tried was former Yugoslavian president Slobodan Milošević , whose trial began in 2002 and was still underway when he died in 2006. In 2000 the Hague tribunal officially established rape, which was rampant during the Yugoslav civil strife, as a war crime. A UN tribunal was also set up (1997) in Tanzania to try those responsible for Hutu massacres of Tutsis in Rwanda in 1994 and in Sierra Leone to try persons accused of atrocities in that country's civil war (1991–2001).

Despite increasing international recognition of the need to prosecute war crimes, such offenses are still often unpunished. Although there were many calls for prosecution of former Khmer Rouge leaders for war crimes, none were tried by Cambodia or internationally until 2009 (due mainly to the length of time it took the Cambodian government to reach an agreement on trials with the United Nations; a mixed Cambodian-international court was finally sworn in 2006). In Indonesia the national courts have tried a number of Indonesian officials and officers for war crimes in East Timor during 1999, but the proceedings ended mainly in acquittals or overturned convictions. In 1998 the UN General Assembly voted in favor of a treaty authorizing a permanent international court for war crimes. The treaty was signed by more than 130 nations (including the United States), and formally came into effect in July, 2002, after 60 nations had ratified the treaty. The judges of the court, called the International Criminal Court (ICC) and located at The Hague, were formally sworn in in 2003. The court is empowered to prosecute war crimes, genocide, crimes of aggression, and crimes against humanity.

Bibliography: See S. Glueck, War Criminals (1944); R. H. Jackson, The Case against the Nazi War Criminals (1946); J. J. Heydecker and J. Leeb, The Nuremberg Trial (tr. 1962); T. Taylor, Nuremberg and Vietnam (1970); N. E. Tutorow and K. Winnovich, ed., War Crimes, War Criminals, and War Crime Trials (1986); A. Neier, War Crimes (1998); B. N. Schiff, Building the International Criminal Court (2009).

WAR CRIMES TRIALS

WAR CRIMES TRIALS. From November 1945 to October 1946, at Nuremberg, Germany, the surviving leaders of the Nazi regime were tried before an international tribunal (the United States, Great Britain, Russia, and France) as war criminals. They were charged with violations of international law, with having waged aggressive warfare, and in general with "crimes against humanity." Of twenty-two high officials brought to trial, nineteen were found guilty. Twelve, including Hermann Göring, Joachim von Ribbentrop, and Artur von Seyss-Inquart, were sentenced to death. Eight were eventually hanged. In addition a number of lesser officials were tried, most of whom were convicted.

Comparable trials of Japanese leaders were held at Tokyo, from May 1946 to November 1948, with similar results, although on a much larger scale. The Allies executed not only Hideki Tojo, the military dictator of Japan, and many of his top lieutenants, but also several hundred lower-ranking Japanese officers who were convicted of torturing and murdering Allied prisoners-of-war.

The trial of war criminals rested on the assumption that aggressive warfare was a crime, and on the still broader assumption that the principles of jurisprudence as developed in England and the United States applied to international relations as well. Yet many people objected that these principles were themselves disregarded in the trials. Thus it was charged that to try men for committing acts that were only later designated as crimes was to pass judgment ex post facto. The only answer to this was that the crimes of the Nazi leaders—the full magnitude of which became apparent only as the trials unfolded—were so horrible as to deserve, if not to demand, such punishment.

During the Cold War stand-off between the United States and Soviet Union, war crimes trials receded from the international scene. After the demise of the Cold War, however, an international consensus built in favor of resurrecting war crimes tribunals, particularly for perpetrators of genocide. In the first years of the twenty-first century, under the auspices of the United Nations, war crimes trials were held to prosecute those accused of committing "crimes against humanity" during the Balkans' Wars of the 1990s, including Slobodan Milosevic, former dictator of Yugoslavia. The United Nations expected to hold similar tribunals to prosecute the perpetrators of the 1994 genocide in Rwanda. During a 1998 United Nations conference in Rome, representatives of over 50 countries agreed to establish a permanent International Criminal Court for the prosecution of war crimes.

BIBLIOGRAPHY

Bloxham, Donald. Genocide on Trial: The War Crimes Trials and the Formation of Holocaust History and Memory. New York: Oxford University Press, 2001.

Persico, Joseph. Nuremberg: Infamy on Trial. New York: Viking, 1994.

ChristopherLasch/a. g.

See alsoCold War ; Extradition ; Genocide ; Germany, Relations with ; Helsinki Accords ; International Law ; Yugoslavia, Relations with .

war crimes Certain activities in war that violate the established rules of warfare, as set out in the Hague and GENEVA CONVENTIONS. In most societies, such activities as the killing of prisoners, their torture or enslavement, hostage-taking, and the deportation and killing of civilians are deemed to be war crimes. Present-day attitudes to war crimes have been influenced by the trials at NUREMBERG and TOKYO in 1945–46 of German and Japanese wartime leaders. In the course of these proceedings, it was made clear that an individual was to be held responsible for his or her actions even if carrying out the orders of a higher authority. During the VIETNAM WAR (1964–75), US soldiers were indicted on charges of killing civilians; and Iraq's hostage-taking and maltreatment of prisoners during its occupation of Kuwait (1990–91) also led to calls for those responsible to be tried for war crimes. A war crimes tribunal of the International Court of Justice, the principal judicial organ of the United Nations, was convened in 1993 to try people accused of ‘ethnic cleansing’ during the conflict in BOSNIA-HERZEGOVINA. Several successful prosecutions followed. In 1999 this tribunal indicted the Yugoslav president, Slobodan MILOŠEVIĆ, of war crimes.

war crimes Violations of international laws of war. The modern conception of war crimes followed the atrocities committed in the era of World War 2, which was followed by the Nuremberg Trials, the first trials of war criminals. Atrocities marked the civil wars in Bosnia-Herzegovina, Rwanda, and Kosovo. See also Geneva Convention

war crime an action carried out during the conduct of a war that violates accepted international rules of war.
war criminal

war crimes tribunal a court established to try cases of alleged criminal violations of the laws and customs of war.