The most authoritative definition of war crimes was formulated in the London Charter of 8 August 1945, which established the International Military Tribunal at Nuremberg. It was adopted in 1946 by the General Assembly of the United Nations in a unanimous resolution approving of the work of the Nuremberg Tribunal:
War Crimes: Violations of the laws or customs of law which include, but are not limited to, murder, ill treatment, or deportation to slave labour 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. (Trial of the Major War Criminals, vol. 1, p. 11)
War crimes under this definition, which follows the traditional doctrine under international law, have the following elements: (1) they are acts of violence against civilian populations, prisoners of war, or in some cases enemy soldiers in the field; (2) they are committed primarily by military personnel; (3) they are in violation of the laws and customs of war; (4) they are not justified by military necessity; and (5) they often involve weapons or military methods of unusual cruelty or devastation.
In the broadest sense, a war crime is any act of violence by military personnel (or by informal semi-military militia) that exceeds the rules of war. War is by its very nature violent, and military acts in wartime—killing, capture, and destruction—would otherwise be considered criminal under the laws of all civilized societies. But every society suspends the application of its criminal law when dealing with military acts in time of war.
However, whatever immunity is accorded these military acts in war extends only to conduct that conforms to the rules of war (Taylor, pp. 19–20). Thus, the incidental killing of civilians in a bombing raid as part of a military operation is not murder because it is justified by military necessity. But the deliberate killing of defenseless civilians by infantrymen, as in Son My (otherwise known as My Lai) in Vietnam or by militia groups in Bosnia or Kosovo, remains what it always was: murder, because the immunity ordinarily accorded military operations did not apply since the acts violated the rules of war. In fact, Lieutenant William Calley, Jr., was tried and convicted by an American military court-martial of various acts of premeditated murder as a result of the killings at Son My, under the section of the Uniform Code of Military Justice dealing with murder and manslaughter (United States v. Calley, 22 U.S.C.M.A. 534, 48 C.M.R. 19 (1973)). He was not charged with a "war crime" as such or tried by a special international tribunal. Rather, he was tried for committing murder by an army court-martial in the same way that a soldier who killed a fellow soldier or a civilian would have been treated for nonmilitary acts committed in that theater of operations.
The narrow definition of war crimes quoted above (excesses by military personnel in the field or atrocities against civilians generally) has been expanded to cover two additional broad categories: (1) crimes against peace, or the "planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties"; and (2) crimes against humanity, or "murder, extermination, enslavement, deportation or other inhuman acts done against any civilian population" (Trial of the Major War Criminals, vol. 1, p. 11).
A more comprehensive definition of war crimes that includes all elements of these offenses is contained in the charter for the International Criminal Court adopted in Rome in the summer of 1998 by the United Nations Diplomatic Conference (U.N. Doc. A/Conf. 183/9, 17 July 1998). The purpose of the Rome conference was to create the International Criminal Court (ICC) as a permanent international judicial body to try war crimes and other international crimes as an alternate to the ad hoc tribunals set up to deal with specific violations of the rules of war in local areas such as Yugoslavia and Rwanda. In the process, the Rome treaty had to define the jurisdiction of the ICC and the defined circumstances under which it would be empowered to act. The definitions of the crimes under its jurisdiction largely follow the Nuremberg model: (a) the crime of genocide; (b) crimes against humanity; (c) war crimes; (d) the crime of aggression (Part 2, Article 5 (1)). However, as noted below, the definitions of these concepts was broadened considerably in the ICC charter.
By the end of 2000, 139 states had signed the Rome treaty containing the broader definitions, although only twenty-seven states had formally ratified it (the treaty needs sixty formal ratifications before it comes into effect). On 31 December 2000, President Bill Clinton signed the treaty on behalf of the United States over objections of both his own Department of Defense and leading members of the U.S. Senate. The senators were concerned that the treaty would apply to nations that did not ratify it and that American soldiers or political leaders might be brought before an international court (without all of the constitutional protections) for actions taken in foreign wars or even for actions taken in their own states (such as a governor who sanctioned the death penalty against minors, mentally retarded prisoners, or against a disproportionate number of a racial or ethnic group).
The broader definition of war crimes generally accepted by the international community includes the following offenses:
Crimes against peace. The concept of "crimes against peace" or "aggression" relate only to the initiation of war and not to its later conduct. Such offenses are primarily crimes of the politically responsible leaders of a country. The theory is of comparatively recent origin, although it is related to the notion of the "just war," described below. The Nuremberg Tribunal had considerable difficulty in determining the origin of the concept of "crimes against peace" in international law. It relied chiefly on the Kellogg-Briand Pact of 1928, which had condemned a "recourse to war for the solution of international controversies" (Article I).
Crimes against humanity. The concept of crimes against humanity does not always or necessarily mean a crime committed during a war. If a nation engages in the systematic slaughter of its own inhabitants (such as the systematic oppression by the Nazis of German Jews and Gypsies before war began in 1939, or the Turkish massacre of Armenians in 1915), those responsible would be guilty of "crimes against humanity" even if there were no international hostilities at the same time. The concept of genocide—killing or causing serious injury to members of a distinct national, ethnic, or racial group or inflicting on the group conditions of life calculated to bring about its physical destruction—grew out of the Nuremberg Tribunal's application of the concept of crimes against humanity. It may be the most typical form of a crime against humanity since a government or state committing such crimes will generally do so against distinct nationalities or ethnic groups, rather than against its own people or against humanity in general. However, crimes against humanity is a broader concept since it covers murder, enslavement, deportation, imprisonment, torture, rape, or other persecution of any identifiable group (political, cultural, gender), and not merely a national or ethnic group covered by the crime of genocide. Thus the ICC charter contains a very broad definition of crimes against humanity, including any "widespread or systematic attack directed against any civilian population" (Article 7(1)). The ICC definition would cover the destruction of the Cambodian population by the Pol Pot regime in the 1970s, for example, and the mass disappearances of political opponents of military governments in Argentina and Chile in the same period, even though such crimes might not fit within the definition of genocide.
The United Nations General Assembly passed a resolution condemning genocide, and the Genocide Convention was drafted and acceded to by many nations, although not by the United States (Article II). If crimes against humanity take place in the midst of a war and are directed against civilian populations of another country, these acts may constitute both war crimes and crimes against humanity. In fact, the Nuremberg Tribunal frequently combined its discussion of "war crimes and crimes against humanity" under a single heading and found various persons guilty of both counts under a single discussion of the evidence.
War crimes without a formal war
Part of the problem in defining "war crimes" is that formal declarations of war, which generally preceded hostilities between states in earlier times, no longer occur. Thus there may be some doubt when a "war" as defined by international law is present. In addition, the "wars" of the latter part of the twentieth century were often civil wars (Rwanda, Sudan, Lebanon), guerrilla wars (Colombia, Peru, Nicaragua), and political conflicts (Cambodia, Argentina, Chile), with assistance sometimes given to one group from an outside power (Vietnam, Yugoslavia). The formal treaties and protocols drafted by the major powers were often one step behind in defining the circumstances under which war crimes took place. Thus, the Geneva Conventions of 1949 dealt primarily with conduct during an "international armed conflict." The conventions contained a Common Article 3, which applied to all four treaties and covered "an armed conflict not of an international character" to which certain, but not all, of the prohibitions applied.
Later efforts to take account of the new types of armed conflicts often left significant gaps. Protocol II to the Geneva Convention proposed in 1977 would extend the protections of the 1949 conventions to victims of "internal wars," a broader concept than "an armed conflict not of an international character" (Protocols Additional to the Geneva Convention of August 12, 1949 and Relating to the Protection of Victims of International Non-International Armed Conflicts, June 10, 1977, 1125 U.N.T.S 609 (hereinafter Protocol II)). The definition of "internal wars" was as follows: "It shall apply to all armed conflicts which are not international and which take place in a territory of a high contracting party between its armed forces and dissident armed forces or other organized armed groups, which under responsible command exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations." Therefore, there must be "dissident armed forces" or "organized armed forces" occupying territories in order to satisfy the definition of "internal war" under Protocol II. (The United States has not ratified Protocol II although over 120 states have acceded to it.)
The International Criminal Tribunal for Yugoslavia (ICTY) broadened the predicate for punishing war crimes in its decision in Prosecutor v. Tadic (No. IT-94-1-T (Yugoslavia Tribunal Trial Chamber, August 10, 1995, affd No. IT-94-1-AR 72)). (Yugoslavia Tribunal, Appeals Chamber, 2 October, 1995, Tadic Appeal on Jurisdiction, reprinted at 35 I.L.M. 32 (1996) and appeal on the merits, 15 July 1999, reprinted in 38 I.L.M. 1518 (1999).) The Appeals Chamber held in the jurisdictional appeal that an armed conflict exists (and therefore the four Geneva Conventions apply) "when there is resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state" (par. 70). Broadening the definition found in the Geneva Conventions and Protocol II, the Appeals Chamber of ICTY held that the technical requirements of an international armed conflict need not be present before the rules contained in those provisions can be applied. The court held that persons engaged in organized armed conflicts either of an international or local nature are bound by "Customary Rules of International Human Rights," which can be applied by both local, ad hoc, and international courts in dealing with excesses against civilian groups or enemy soldiers.
In its second decision on the merits, the Appeals Chamber held that the Bosnian Serb militias were acting on behalf of the goals "and shared strategic objects" of the Serbian government in Belgrade (par. 153), even if they were not directly under the control of the Serbian military, thus bringing their actions within the prohibitions of the Geneva Conventions relating to "international armed conflicts."
The Rome Charter of the ICC also broadens the definition of crimes against humanity by encompassing any attack upon a civilian population under the following circumstances: "a course of conduct involving the multiple commission of acts referred to in paragraph 1 [murder, enslavement, deportation, torture, rape, apartheid, disappearances, or other inhumane acts] against any civil population, pursuant to or in furtherance of a State or organizational policy to commit such attack" (Article 7(2)(a)).
There are slight differences between crimes against humanity as defined in the Rome Charter and the statutes creating the international criminal tribunals for Yugoslavia (ICTY) (U.N. Doc. S/PV. 3217 (1993)) and Rwanda (ICTR) (U.N. Doc. S/RES/955 (1994)). The Rome Charter requires "a multiple commission of acts" against civilians, but it contains no requirement that the acts be committed in the context of an armed conflict. Nor does the ICTR statute require any such conflict. The ICTY statute does require an armed conflict before it can exercise jurisdiction, and also demands some kind of discriminatory motive on the part of the perpetrator, a requirement that is not found in the Rome Charter. But all three enactments greatly expand the defined circumstances under which international law against crimes of war can be applied.
In February 2001, a panel of the ICTY found that rape in and by itself could constitute a crime against humanity and found three Bosnian Serb soldiers guilty of enslaving and abusing hundreds of Muslim women from the town of Foca, near Sarajevo, during the Bosnian conflict. They were sentenced to twenty-eight, twenty, and twelve years' imprisonment, respectively (Prosecutor v. Kunarac ).
Although the notions of crimes against humanity and genocide may be comparatively recent, the concept of war crimes as a restraint on the military is of much older origin. Virtually every recorded civilization placed some limitations on the conduct of its own warfare, and violations of such rules could therefore be considered war crimes. In the Egyptian and Sumerian wars of the second millennium b.c.e., there were rules defining the circumstances under which war might be initiated. In ancient China it was forbidden in wartime to kill wounded enemies or to strike elderly armed opponents. The Chinese philosopher Sun Tzu wrote in The Art of War (400 b.c.e.): "Treat the captives well and care for them. All the soldiers taken must be cared for with magnanimity and sincerity so that they may be used by us" (Friedman, p. 3). Similar restrictions on killing the wounded, ordinary citizens, women, children, or prisoners were expressed in Hindu literature of the fourth century b.c.e., in Babylonian texts, and in the Bible (Deut. 20).
The Greeks and Romans introduced further notions of humane and civilized treatment of noncombatants in war. Plato wrote in his Republic that war among the Hellenes should have as its end "friendly correction," and not destruction of the enemy. The Romans developed the concept of the "just war" that alone warranted resort to force. Truces, safe-conduct passes, and armistices were respected, and cease-fires were agreed upon so that the dead might be buried. Poisoned weapons were prohibited. This is not to say that the Greeks or Romans did not engage in barbarous acts in time of war. But the development of rules of restraint, although frequently violated, established the principle that limits had to be placed on acts of war—a notion that Christianity was to carry forward over the coming centuries.
In the early Christian era, observance of the Christian principles of pacifism and nonresistance eventually gave way to ferocious efforts to defend Christendom and expand its boundaries. St. Augustine (354–430) and St. Thomas Aquinas (1225–1274) developed the just-war doctrine, arguing that wars by a Christian sovereign to spread and protect the true faith against attack by outside enemies were justified. The early church fathers had insisted that soldiers who killed even in a just war should do penance, and they warned against pillaging and slaughter. Later, ecumenical councils of the church passed various decrees establishing a "Truce of God," when all fighting was to cease, and tried to arrange cease-fires between Christian princes during the Crusades.
Beginning in the fifteenth century, two other developments contributed to the establishment of rules of war on an international basis: (1) the chivalric code of honor took shape, limiting the weapons and methods that could be used in combat; and (2) merchants insisted that unlimited pillaging and destruction in wartime ought to be restrained. The chivalric code applied across national borders and was founded on natural law, limiting even princes in their capacity as knights and soldiers (Keen, p. 50).
Scholastic teachers, jurists, and theologians reexamined and systematized the laws of war as derived from classical Greek and Roman practice, Christian doctrine, contemporary practice, and chivalric codes. Francisco de Vittoria (1485–1546), a Spanish professor who lectured on Thomist philosophy in Paris and Salamanca, examined the moral and legal problems of the Spanish conquests against the Native Americans in the New World in his work on the law of war. He concluded that "it is never right to slay the guiltless, even as an indirect and unintended result, except where there is no other means of carrying on the operations of a just war" (p. 179). Other important sixteenth- and seventeenth-century writers on the laws of war were Balthazar Ayola, judge advocate of the Spanish armies in the Netherlands; Francisco Suarez; and Alberico Gentili.
The most systematic and comprehensive work on the laws of war was that of the Netherlander Hugo Grotius (1583–1645), who served in many important positions in the Dutch government, including a term as attorney general. In 1625 he published a three-volume work titled The Law of War and Peace , which brought together classical and medieval thought on the restraints on war and sought to reconcile Christian dogma and the actual practice of contemporary states in wartime. Grotius attempted to discover what the rules of international law were, using the acts of generals and soldiers as the basis for his search. Writing at the beginning of one of the most ferocious and bitter wars of European history, the Thirty Years' War (1618–1648), Grotius proceeded on the assumption that the experiences and actions of armies in war were not improper deviations from a theological norm. Rather, they were the expressions of a natural order, whose principles he could determine.
Grotius sought to explain what that natural law was. If war does have rules that all states obey (or should obey), then deviation from those rules should become a crime—a war crime, as the twentieth century would call it. Some seventeenth-century Christian princes took Grotius's rules seriously. Gustavus II Adolphus of Sweden carried a copy of Grotius's book with him everywhere, established strict rules against attacking hospitals, churches, schools, or the civilians connected with them, and severely punished those of his own soldiers who disobeyed the rules (Wedgwood, pp. 261, 265). Other generals either did not or could not control their men, and mass destructions and pillage took place frequently. In the rare cases when soldiers were punished for such deeds, it was not because they had committed a war crime—which had no meaning at the time—but because they had committed murder or rape under circumstances that the commander could not overlook.
The rise of the nation-state in the eighteenth and nineteenth centuries and the decline of the church's moral authority led to more concrete efforts to define and codify the laws of war whose violation would constitute a war crime.
The Lieber Code and the development of international treaties
In the nineteenth century, the effort to systematize the laws of war and restrain excesses by the military against civilians and prisoners received a major impetus from an American law professor, Francis Lieber (1800–1872), a German-born veteran of the Napoleonic Wars. In the middle of the American Civil War, Lieber suggested that a code of the law and usages of war be prepared that would be used as a guide by military commanders in their treatment of prisoners of war, irregular guerrilla forces, and captured enemy property. In April 1863, Lieber's code was issued by the Union government under the title "Instructions for the Government of Armies of the United States in the Field." Many European nations, including Prussia, quickly adopted instructions based on the code.
The European nations had meanwhile begun the process of codifying the laws of war by international treaties binding on signatories in all future conflicts. The first step had been the Declaration of Paris (1856), signed by seven European nations, dealing with the seizure of neutral ships carrying enemy goods. The Red Cross Convention (1864), which specifically covered the treatment of the wounded in armies in the field, was signed by twelve European nations. (The United States acceded to it in 1882.) In 1868, eighteen nations signed and ratified another agreement, the Declaration of St. Petersburg, concerned with "projectiles . . . charged with fulminating or inflammable substances."
A more comprehensive treaty, dealing with all aspects of the conduct of war and based largely on the Lieber Code, was prepared by delegates of fifteen nations who met in Brussels in 1874. However, some European powers that had begun to develop new weapons and that faced the prospect of new wars became cool to the idea, and the Brussels Declaration was never officially adopted. Twenty-five years later (1899), on the initiative of Russia, a new conference was called at The Hague that led to the first of a series of international conventions broadly treating the conduct of war. The conference adopted a series of treaties dealing with treatment of prisoners of war and military authority over hostile territory, and prohibiting (for a period of five years) the use of poison gas, expanding bullets ("dumdums"), and bombs dropped from balloons.
In 1907, another conference was held at The Hague, from which emerged fourteen separate treaties, eight of them concerned with maritime matters. Agreement was also reached on a convention dealing with the wounded and prisoners of war, and containing detailed regulations for conduct toward civilians in land warfare. The earlier ban against bombing from balloons was extended.
A new conference at The Hague was planned for 1915. By that time World War I had broken out, and the Hague conventions were being given their first practical application. After the war ended, an Allied commission was appointed to determine whether any enemy soldiers should be tried for violating the laws and customs of war. The commission recommended that an international court be established, composed of representatives of the major powers (a plan later followed in the creation of the Nuremberg Tribunal after World War II), which would apply the principles of the Hague conventions. But the peace commissioners decided to have existing military tribunals from the victorious armies act as the trial courts. The German government strenuously objected, insisting that its own courts should conduct the trials. The Allies agreed to let the Reich Supreme Court at Leipzig handle the charges. A group of German soldiers who had mistreated Allied prisoners were found guilty by the Leipzig court, but were given minor sentences. Two U-boat officers were also tried, for taking part in the torpedoing of a troop ship and the shelling of the survivors (the Llandovery Castle case). But five defendants accused of the atrocities against Belgian civilians that had so outraged the world were acquitted.
After World War I, the European nations also returned to the process of codifying the laws of war. In 1925 they prepared a treaty prohibiting the use of bacteriological methods of warfare. In 1929 two detailed conventions were prepared at Geneva dealing with conduct toward the sick and wounded as well as prisoners of war. Both conventions were to be in force during World War II.
The modern industrial powers continued the effort to define war crimes by treaty in Geneva in 1949, after World War II and the Nuremberg trials. Once again, detailed conventions were laid down, in the following four separate agreements.
- Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.
- Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea.
- Convention Relative to the Treatment of Prisoners of War.
- Convention Relative to the Protection of Civilian Persons in Time of War.
After World War II, the United Nations had taken over the major effort to codify the rules of war. It passed the Genocide Convention in 1948; a resolution against nuclear weapons in 1961; and a resolution on human rights, calling for protection of civilian populations in time of war, in 1968. In the early 1970s the United Nations also urged the International Committee of the Red Cross (ICRC) to develop new agreements on rules of war that would take account of colonial and guerrilla wars, as well as new methods of warfare not covered by earlier conventions. The ICRC brought together a group of experts, who in 1977 produced two protocols to the 1949 Geneva Conventions, dealing with colonial wars of liberation, prisoner-of-war status, and protection of civilian populations (Protocols Additional to the Geneva Convention of August 12, 1949 and Relating to the Protection of Victims of International and Non-international Armed Conflicts, June 10, 1977, 1125 U.N.T.S 609). The United States did not ratify the 1977 protocols.
Another conference was held in Geneva in 1980, to consider restrictions on the use of certain conventional weapons. Three additional protocols were prepared in 1981, covering weapons that introduce nondetectable fragments into the human body; mines, booby traps and other devices; and incendiary weapons (United Nations Conference on Prohibitions or Restrictions on Use of Certain Conventional Weapons: Final Act, U.N. Doc., A/CONF. 95/15 of October 27, 1980 reprinted in 19 I.L.M. 1523, 1530).
In December 1997, 122 countries signed the Landmine Treaty (the Oslo Treaty), which grew out of the 1980 Geneva Conference, banning the use, sale, and production of antipersonnel mines, which ravaged many parts of Asia and Africa (Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction, 36 I.L.M. 1507). The treaty came into force on 1 March 1999, although the United States refused to sign because of objections made by the Department of Defense, which was concerned that it would inhibit its ability to respond to rogue nations who refused to obey or follow the restrictions contained in the treaty.
Efforts to declare the use of nuclear weapons a violation of international law and therefore a war crime have continued for many years. Proponents of such a declaration argue that nuclear weapons by their nature inflict excessive and unnecessary suffering on civilian populations, in violation of the 1907 Hague Convention and the 1949 Geneva conventions (Falk, Meyrowitz, and Sanderson). In fact, in December 1963 a Japanese court did reach such a decision in the famed Shimoda case, in which victims of Hiroshima and Nagasaki sued the Japanese government for damages caused by the dropping of the atomic bombs on those cities. (The Japanese government had waived any claims by its citizens against the United States in the peace treaty of 1951, and thus was sued as a surrogate for the actual perpetrators.)
The Hague and Geneva conventions are a reflection, but not necessarily the source, of the laws of war. International law has evolved out of the customs and practices prevailing among civilized nations, and the rules of war as laid down in the conventions are but one expression of this common heritage. The conventions declare that all nations are bound by basic rules of warfare, whether or not they are signatories to the treaties and whether or not they attempt to withdraw their ratification. Article 63 of the first Geneva Convention of 1949 (relating to wounded and sick in the field) allowed any party to denounce the treaty, but the "denunciation shall have effect only in respect of the denouncing Power. It shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfill by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience." The appeals decision in Tadic also recognized that all nations are bound by "Customary Rules of International Human Rights," regardless of the technical application of a particular treaty or protocol and regardless of whether a nation adhered to their legal provisions.
Those common principles have not varied in their basic outlines for thousands of years: defenseless civilians should not be attacked, prisoners should not be killed, the wounded should be cared for, and weapons of unnecessary destructiveness should not be used.
War crimes trials
As noted above, trials of soldiers who raped civilians, tortured prisoners, or killed the wounded have been rare events until modern times. Victorious armies seldom punished their own men. In the days when payment to soldiers was haphazard, commanders found that permitting excesses and the pillaging of the enemy served as a useful escape valve, and clear rules on what was prohibited in war were not definitively laid down.
With the rise of permanent, professional armies, the necessity for imposing discipline upon soldiers was perceived, and the first international treaties on the rules of war were signed. Punishment for violations of these rules began to be imposed. One of the earliest complete records of a war crimes trial as such involved Major Henry Wirz, the Swiss doctor who was in charge of the Confederate army's infamous Andersonville prison camp during the Civil War. A Union court-martial headed by Major General Lew Wallace (the author of Ben-Hur ) tried and convicted Wirz of murder and mistreatment of prisoners "in violation of the laws and customs of war," which had just been defined in the Lieber Code, discussed above. Wirz raised the defense of superior orders, but the court rejected the claim, and he was hanged for his crimes.
The British army tried some of its soldiers for killing prisoners and civilians during the Boer War (commemorated in the 1980 Australian film Breaker Morant ), and the American army held trials in the Philippines to punish atrocities committed by its soldiers during the insurrection of 1899–1902. A limited effort was made to try war criminals after World War 1. But it was left to German courts to try their own soldiers, and the defendants were treated quite leniently or were acquitted, as described above.
The most important group of war crimes trials took place after World War II. The Allied powers issued the "Moscow Declaration" in October 1943, announcing that those accused of war crimes would be "brought back to the scene of their crimes and judged on the spot by the peoples whom they have outraged." The declaration also specified that the Allies would take action against the "major criminals whose offenses have no particular geographical localization."
The United Nations War Crimes Commission was established in 1943 to gather evidence of war crimes for later use. It was chiefly concerned with the committing by lower-level officials or soldiers of such crimes as mistreatment of prisoners of war, atrocities against civilians, or execution of hostages.
The Allied powers engaged in considerable debate about what to do about the higherechelon leaders. As late as April 1945 the British cabinet voted to shoot the chief Nazi leaders on sight, even if they surrendered, rather than hold elaborate trials. But the Americans and Soviets insisted on an international military tribunal, and the British eventually acceded. The procedures for trying the cases were worked out in London in July and August 1945. An international military tribunal made up of representatives of the four major powers (the United States, Great Britain, the Soviet Union, and France) would try the major political and military leaders of the German government. The charges determined by the London Conference included (1) crimes against peace; (2) war crimes; and (3) crimes against humanity, as defined above.
Twenty-two leading members of the German government were tried at Nuremberg between November 1945 and August 1946. Nineteen were found guilty, and twelve were sentenced to death by hanging, including Hermann Göring, Joachim von Ribbentrop, Hans Frank, Wilhelm Frick, Alfred Jodl, and Martin Bormann, the last tried in absentia.
The specific war crimes of which the Nazi leaders were found guilty included the killing of captured Allied soldiers and prisoners of war, the massacre of hostages in occupied territories, the murder and ill treatment of civilian populations, the deportation of civilians for use as slave labor, and, of course, the systematic killing of the Jewish population of occupied Europe. The tribunal found the defendants guilty of these war crimes not only on the basis of violations of the Hague and Geneva conventions, but also because they violated the customary rules of war between nations. The terms of the Hague and Geneva conventions applied only if all belligerents were parties to them, whereas they had not been explicitly ratified by the Soviet Union and some other countries involved in the war.
The rules of land warfare expressed in the (Hague) convention undoubtedly represented an advance over existing international law at the time of their adoption. But the convention expressly stated that it was an attempt "to revise the general laws and customs of war" which it thus recognized to be then existing; but by 1939 these rules laid down in the convention were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war. (Trial of the Major War Criminals, vol. 1, pp. 253–254)
The formation of the International Military Tribunal was an important step in the punishment of war crimes. First, it showed that the Hague and Geneva conventions were an embodiment of international law that could be enforced on an international level. Prior war crimes trials had been held by individual nations applying their own law to their own soldiers or those of the enemy.
Second, persons were put on trial for violating international law even though their own domestic law permitted those acts. As explained by Telford Taylor, chief counsel for the prosecution at Nuremberg, "individuals may be held criminally liable under international law, even though their conduct was valid under, or even required by, domestic law" (Taylor, p. 82).
Third, the Nuremberg trials expanded individual liability for war crimes far beyond the acts of individual soldiers committing atrocities. Contrary to popular belief, the Nuremberg tribunal was not the first court to declare that superior orders was not a defense to a war crime: that defense had been rejected in the trial of Major Wirz and in the Llandovery Castle case decided by the Leipzig court in 1921. Indeed, the domestic law of Great Britain, the United States, and Prussia had long since held that a person does not escape liability for a crime by insisting that he was following orders. What the Nuremberg tribunal did do was to apply the converse of the superior-orders rule: namely, that the persons giving the orders, up to and including the political leaders of the nations, could also be guilty of war crimes. Thus, among those found guilty were German generals who had ordered the killing of prisoners of war, the civil administrators of occupied territories, and the economic ministers who had exploited slave labor. In addition to the trial of the major criminals, the Allies decided that lower-level German officials should be tried by national or occupation courts of each occupying power.
After the major trials in Nuremberg, American military tribunals held 809 trials in both Germany and Japan, involving 1,600 defendants; the British held 524 trials involving 937; and the French tried 2,107 individuals (Trials of War Criminals ; United Nations, War Crimes Commission). It is estimated that ten thousand persons were tried for war crimes in Europe and the Far East between 1945 and 1950.
In Europe, the individuals tried included soldiers who killed prisoners, civilians, and hostages, officers who did not properly restrain their subordinates, doctors who conducted illegal medical experiments on prisoners, judges who enforced racial laws against Jews and other nationalities, industrialists who exploited slave labor, and even the manufacturers of the Zyklon B gas that was used to kill Jews and Allied nationals in concentration camps.
Similar trials took place in the Far East. An international military tribunal for the Far East tried the leading Japanese political leaders and generals on the same charges as those heard in Nuremberg. A number of the defendants—particularly some of the generals—were found guilty of committing atrocities against civilians in China, Borneo, and the Philippines, of mistreating and starving prisoners of war, or of disregarding their duty to protect civilians and prisoners under their jurisdiction.
Other trials were held by military commissions in occupied territories. The most famous was the trial of General Tomoyuki Yamashita, the Japanese commander of the Philippines in 1944 and 1945. Yamashita was found guilty of "unlawfully disregard[ing] and fail[ing] to discharge his duty as commander in chief to control the operations of the members of his command, permitting them to commit brutal atrocities" (In re Yamashita, 327 U.S. 1, 13–14 (1946)). It appeared that Yamashita had poor communication with his troops and little opportunity to control them after the American invasion of Luzon. Nevertheless, he was found guilty of war crimes based on the atrocities committed by his troops. His lawyers appealed to the U.S. Supreme Court, which refused to intervene, over famous dissents by Justices Frank Murphy and Wiley Rutledge.
One of the most significant war crimes trial after the 1940s was that of Adolf Eichmann, kidnapped from Argentina by Israeli agents and tried in Jerusalem in 1961. There was no question that Eichmann was personally involved in—and therefore responsible for—the killing of millions of Jews from occupied countries. The only legal issue of any significance was whether Israel had jurisdiction to try him. Since he was charged with crimes against the Jewish people, the Israeli court had no difficulty in finding that it could act. "The connection between the State of Israel and the Jewish people needs no explanation" (Friedman, p. 1633).
The issue of war crimes became more significant for Americans during the Vietnam War. The best-known episode occurred when an American military company invaded the small hamlet of Son My (My Lai) in South Vietnam in March 1968 and killed virtually every inhabitant, including women, children, and old men, a total of about four hundred persons. The victims were defenseless, made no effort to fight the Americans, and were not hostile. According to testimony at the court-martial of Lieutenant William Calley, Jr., held in March 1971, Calley had ordered his men to kill everyone and had personally killed a number of the inhabitants, including a two-year-old child. He was found guilty of the premeditated murder of twenty-two Vietnamese civilians and sentenced to life imprisonment. The sentence was reduced to twenty years' imprisonment by the commanding general of Fort Benning, and was further reduced to ten years by the secretary of the army. Calley was paroled after serving one-third of the sentence (Calley v. Callaway, 519 F. 2d 184 (5th Cir. 1975)).
Three other persons were tried for their involvement in the Son My episode, but all were acquitted of the charges: Captain Ernest Medina, the company commander who denied having given Calley orders to kill, and two sergeants, Charles Hutto and David Mitchell. Thus, only Calley was found guilty of any charges. One other American soldier, marine private Michael Schwartz, was found guilty of killing twelve Vietnamese villagers in a separate incident at Danang.
There was considerable debate about the legality under international law of American bombing of North Vietnamese cities, but most experts believed that it was no different or worse than Allied bombings during World War II. American treatment of Vietcong prisoners raised more serious problems, and one American lieutenant, James Duffy, admitted during his court-martial that he had ordered a prisoner to be killed. He was acquitted after other officers testified that they too had been ordered to take no prisoners in combat.
In the 1990s, war crimes trials were held in both Yugoslavia and Rwanda, following widespread atrocities against civilian populations in both counties. The U.N. Security Counsel established special tribunals with defined jurisdiction to try those responsible for mass killings and other offenses, including deportation and rape. The tribunals were known as the International Criminal Tribunal for Yugoslavia (ICTY) (U.N. Doc. S/PV. 3217 (1993)) and the International Criminal Tribunal for Rwanda (ICTR) (U.N. Doc. S/RES/955 (1994)). Over one hundred individuals were indicted by the ICTY, including the former president of Serbia, Slobodan Milosevic, for his actions in ordering the persecution of Albanian civilians in Kosovo, including the murder and forced removal of many Kosovo Albanian citizens. The trials produced important new rulings on international crimes, including the decision that rape is a crime against humanity (Prosecutor v. Kunaric ) and that a crime against humanity can be committed in purely internal conflicts by local militias who are acting for the goals of a foreign power, even if not under their direction (Prosecutor v. Tadic ).
By the end of 2000, the ICTR had indicted close to fifty individuals for genocide and crimes against humanity following the massacre of hundreds of thousands of Tutsis by the Hutudominated government in 1994. Half of the Rwanda cabinet in power at the time, including the former Prime Minister, Jean Kambanda, were indicted for genocide. (A much smaller number of Hutu noncombatants were killed by avenging Tutsis, and Louise Arbour, the former chief prosecutor of the ICTR urged that evenhanded justice required their indictment as well.)
Defining and punishing war crimes has remained an anomalous undertaking. Nations encourage soldiers to kill in war, but try to limit their methods and targets. We allow depersonalized mass bombings of cities, which can kill thousands of defenseless civilians, but we punish individual acts of soldiers who actually confront their victims, and we stockpile weapons far worse than the poisoned arrows prohibited in Roman times. With the increase of ferocious wars of liberation, having no distinct battle lines, and with the growing number of guerrilla armies who fight without uniforms or insignia, the formal rules of the Hague and Geneva conventions may seem outdated. But the need for effective and principled control over atrocities and excesses in armed conflicts of any kind continues.
See also Excuse; Duress; International Criminal Courts; International Criminal Justice Standards; International Criminal Law; Justification: Necessity; Justification: Self-Defense; Terrorism; War and Violent Crime.
Falk, Richard A.; Kolko, Gabriel; and Lifton, Robert Jay, eds. Crimes of War: A Legal, Political, Documentary, and Psychological Inquiry into the Responsibility of Leaders, Citizens, and Soldiers for Criminal Acts in Wars. New York: Random House, 1971.
Falk, Richard A.; Meyrowitz, Lee; and Sanderson, Jack. "Nuclear Weapons and International Law." Occasional Paper No. 10. Princeton, N.J.: Princeton University, Center of International Studies, 1981.
Friedman, Leon, ed. The Law of War: A Documentary History. 2 vols. Foreword by Telford Taylor. New York: Random House, 1972.
Friedman, Leon, and Tiefenbrun, Susan, eds. War Crimes and War Crimes Tribunals: Past, Present and Future. Vol. 3 of Hofstra Law and Policy Symposium. Hempstead, N.Y.: Hofstra University School of Law, 1999.
Grotius, Hugo. The Law of War and Peace (1625). 3 vols. Translated by Francis W. Kelsey, with the collaboration of Arthur E. R. Boak, Henry A. Sanders, Jesse S. Reeves, and Herbert F. Wright. Introduction by James Brown Scott. Oxford, U.K.: Oxford University Press, Clarendon Press, 1925. Photographic reprint. Indianapolis: Bobbs-Merrill, 1962.
Hammer, Richard. One Morning in the War: The Tragedy at Son My. New York: Coward-McCann, 1970.
Keen, Maurice H. The Laws of War in the Late Middle Ages. London: Routledge & Kegan Paul, 1965.
Lieber, Francis. "Instructions for the Government of Armies of the United States in the Field" [The Lieber Code] (1863). International Law Discussions, 1903: The United States Naval War Code of 1900. U.S. Naval War College. Washington, D.C.: Government Printing Office, 1904. Pages 115–139.
Marrin, Albert, ed. War and the Christian Conscience: From Augustine to Martin Luther King, Jr. Chicago: Regnery, 1971.
Minear, Richard H. Victor's Justice: The Tokyo War Crimes Trial. Princeton, N.J.: Princeton University Press, 1971.
Red Cross, International Committee. Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: Report on the Work of the Conference. Geneva: The Committee, 1977.
"Respect for Human Rights in Armed Conflicts." G.A. Res. 2444. Resolutions Adopted by the General Assembly during Its Twenty-Third Session, September 24–December 21, 1968. U.N. Doc. A/72 18. New York: UN, 1969. Pages 50–51.
Taylor, Telford. Nuremberg and Vietnam: An American Tragedy. New York: Quadrangle, 1970.
Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, Nov. 14, 1945–Oct. 1, 1946. 42 vols. Nuremberg: The Tribunal, 1947–1949. Reprint. New York: AMS Press, 1971.
Trials of War Criminals before the Nurenberg Military Tribunals under Control Council Law No. 10, October 1946–April 1949. 15 vols. Washington, D.C.: Government Printing Office, 1949–1953.
United Nations, General Assembly. "Declaration on the Prohibition of the Use of Nuclear and Thermonuclear Weapons." G.A. Res. 1653. Resolutions Adopted by the General Assembly during Its Sixteenth Session, September 19, 1961–February 23, 1962, vol. 1. U.N. Doc. A/5100. New York: UN, 1962. Pages 4–5.
United Nations, War Crimes Commission. Law Reports of Trials of War Criminals, Selected and Prepared by the UN War of Crimes Commission. 15 vols. London: His Majesty's Stationery Office, 1947–1949.
Vittoria, Francisco de. "The Second Relectio of the Reverend Father, Brother Franciscus de Victoria on the Indians [and] on the Law of War Made by the Spaniards on the Barbarians." Translated by John Pawley Bate. Edited by Ernest Nys. Preface by James Brown Scott. In The Classics of International Law, vol. 7. Washington, D.C.: Carnegie Institution, 1917. Pages 163–187.
Walzer, Michael. Just and Unjust Wars: A Moral Argument with Historical Illustrations. New York: Basic Books, 1977.
Wedgwood, Cicely V. The Thirty Years War. New Haven, Conn.: Yale University Press, 1939.
INTERNATIONAL AGREEMENTS (IN ORDER OF SIGNING)
General Treaty for the Renunciation of War as an Instrument of National Policy [Kellogg-Briand Pact], Aug. 27, 1928, 94 L.N.T.S. 57.
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis [London Charter], Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.
Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T, 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 31.
Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, T.I.A.S. No. 3363, 75 U.N.T.S. 85.
Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 33 16, T.I.A.S. No. 3364, 75 U.N.T.S. 135.
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 35 16, T.I.A.S. No. 3365, 75 U.N.T.S. 287.
Protocols Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International and Noninternational Armed Conflicts, June 10, 1977, International Legal Materials 16 (1977): 1391–1449; 1125 U.N.T.S. 609.
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction, 36 I.L.M. 1507 (December, 1997).
Charter for the International Criminal Tribunal, U.N. Doc. A/Conf. 183/9, 17 July 1998.
FRIEDMAN, LEON. "War Crimes." Encyclopedia of Crime and Justice. 2002. Encyclopedia.com. (August 29, 2016). http://www.encyclopedia.com/doc/1G2-3403000276.html
FRIEDMAN, LEON. "War Crimes." Encyclopedia of Crime and Justice. 2002. Retrieved August 29, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3403000276.html
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.]
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.
John Whiteclay Chambers II. "War Crimes." The Oxford Companion to American Military History. 2000. Encyclopedia.com. (August 29, 2016). http://www.encyclopedia.com/doc/1O126-WarCrimes.html
John Whiteclay Chambers II. "War Crimes." The Oxford Companion to American Military History. 2000. Retrieved August 29, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O126-WarCrimes.html
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
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.
"War Crimes." International Encyclopedia of the Social Sciences. 2008. Encyclopedia.com. (August 29, 2016). http://www.encyclopedia.com/doc/1G2-3045302938.html
"War Crimes." International Encyclopedia of the Social Sciences. 2008. Retrieved August 29, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3045302938.html
War Crimes Trials
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 Trials." World of Forensic Science. 2005. Encyclopedia.com. (August 29, 2016). http://www.encyclopedia.com/doc/1G2-3448300594.html
"War Crimes Trials." World of Forensic Science. 2005. Retrieved August 29, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3448300594.html
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.
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).
"War Crimes." West's Encyclopedia of American Law. 2005. Encyclopedia.com. (August 29, 2016). http://www.encyclopedia.com/doc/1G2-3437704641.html
"War Crimes." West's Encyclopedia of American Law. 2005. Retrieved August 29, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3437704641.html
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.
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." The Columbia Encyclopedia, 6th ed.. 2016. Encyclopedia.com. (August 29, 2016). http://www.encyclopedia.com/doc/1E1-warcrime.html
"war crimes." The Columbia Encyclopedia, 6th ed.. 2016. Retrieved August 29, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1E1-warcrime.html
War Crimes Trials
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.
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.
"War Crimes Trials." Dictionary of American History. 2003. Encyclopedia.com. (August 29, 2016). http://www.encyclopedia.com/doc/1G2-3401804462.html
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"war crimes." World Encyclopedia. 2005. Encyclopedia.com. (August 29, 2016). http://www.encyclopedia.com/doc/1O142-warcrimes.html
"war crimes." World Encyclopedia. 2005. Retrieved August 29, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O142-warcrimes.html