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.
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.
WAR CRIMES.EUROPE IN 1914
WORLD WAR I AND AFTER
WORLD WAR II AND AFTER
Strictly speaking, the term war crimes means breaches of the laws of war committed in war; it was first used in this sense by the British jurist Lassa Oppenheim in 1906. In a broader sense it includes "crimes against peace" and "crimes against humanity." Genocide and the Holocaust are treated here mainly in their relationship to war crimes.
Europe was at the zenith of its power in 1914, dominant in world trade, industrial production, and foreign investment. European power derived not only from its early industrialization but also from its global reach. As the twentieth century began, European powers were already engaged in unprecedented wars of total subjugation for the exploitation of undeveloped countries. In the Congo, Belgian rule meant ruthless exploitation in which millions were killed by flogging, shooting, burning, forced labor until exhaustion, and diseases spread by the disruption of the violent incursion. Belgian methods of colonial rule were emulated in the German Cameroons and French Equatorial Africa. (Death rates are impossible to calculate in the absence of reliable census statistics, but Adam Hochschild, author of King Leopold's Ghost , estimates a population loss of 50 percent in the Congo during the period 1884–1920, and a similar rate in French Equatorial Africa; other historians are more cautious and do not give figures.) The suppression of the Maji Maji rebellion in German East Africa (1905–1907) led to the death of at least 250,000 people. There may not have been genocidal intent in these cases, but for the peoples involved the effects were catastrophic. What could happen when a European power decided on a "war of annihilation" was shown in German Southwest Africa from 1904 to 1907 when German troops wiped out the majority of the Herero people; the 17,000 survivors were interned in concentration camps where half of them died. In total almost 80 percent of the Herero perished.
Despite Hannah Arendt's suggestive remarks in The Origins of Totalitarianism (1951) on the precursor role of European colonialism and its legacy of racist exterminism, no convincing argument has emerged to show that there was a direct, causal connection between colonial warfare and war crimes or genocide in World War II. The greatest perpetrators, the Belgians in the employ of King Leopold II's Congo company, were not responsible for war crimes in either of the world wars. Yet at a deeper level, imperialist ideology, rooted in real or vicarious experience of empire, could fuse with militarist nationalism, which grew from different roots, to produce the idea of enemy people as inferior, even as "vermin." In Absolute Destruction Isabel Hull locates the connection in the miltary culture of Germany as it developed from 1870 to 1914, rather than identifying colonial warfare as the cause or precursor of later war crimes in Europe. This approach provides a powerful explanation of German war crimes in World War I but is less persuasive in explaining national differences.
Just as colonial war crimes were reaching their catastrophic peak in the two decades before 1914, the world's most advanced nations were meeting to codify the laws of war in international agreements to prevent unnecessary suffering and protect noncombatants in the 1906 Geneva Convention and the 1899 and 1907 Hague Conventions. This historic paradox was not entirely the piece of hypocrisy it appears at first sight. The years 1900 to 1914 marked a period in which criticism of imperialism grew increasingly vocal, the international scandal around the Belgian atrocities in the Congo and the sustained domestic political criticism in Germany of colonial warfare being prominent examples, resulting in both cases in the belated reform of colonial rule. In the South African war (1899–1902) almost 28,000 Boer civilians and, it is often forgotten, at least 16,000 Africans had died in "concentration camps" established by the British. But the intervention of scandalized liberal opinion in Britain, notably a report by Emily Hobhouse, came in time to enforce the improvement of camp conditions, reducing the death rate. The increasing importance of the discourse of human rights in the international public sphere helps to explain the sense of outrage at the war crimes committed during World War I.
War crimes accompanied World War I from beginning to end. The German chancellor Theobald von Bethmann Hollweg freely admitted that the invasion of neutral Belgium broke international law (Hague Convention V). This focused attention on the legal-moral question, but the British response was not, as some historians have argued, merely a cynical smokescreen for traditional great power politics: the prospect of German hegemony over the Continent posed a fundamental threat to British security. That the German invasion was followed within days by news that German troops had committed widespread atrocities against Belgian and French civilians not only confirmed the moral justification of the Allied cause but also lent the Allies a propaganda weapon to mobilize home and neutral opinion that was all the more powerful for being based on reality: from August to October 1914 the German army intentionally killed 5,521 civilians in Belgium and 906 in France. Atrocity propaganda notoriously exaggerated and invented some stories (e.g., children's hands severed, nuns raped), but the truth was bad enough: the victims were virtually all unarmed civilians; many were women and children; civilians were used as human shields before enemy fire; there were instances of torture and arson; and, most damaging for the reputation of Germany as a cultured nation, the university library of Louvain was deliberately burned.
After the initial invasions, everywhere in occupied Europe civilians were subject to exploitation and arbitrary rule; to prevent escape, a lethal electrified fence was erected on the border between Belgium and the Netherlands. Civilians were deported as forced labor, including 120,000 Belgians and several thousand women and girls from Lille. In eastern Europe there was a brutal occupation regime with extensive forced labor; the exploitation of natural resources and disruption of war led to impoverishment, famine, and epidemics in which thousands died in the winter of 1917–1918. In pioneering work at the Paris Peace Conference (1919–1920), the European nations that were the victims of German aggression drew up thirty-two categories of war crimes (starting with massacre of civilians and the killing of hostages and including gender-specific crimes of rape and forced prostitution), which helped frame the terms of the prosecution of war crimes following World War II. Against U.S. objections, the European nations thus created a historic precedent in demanding the extradition of German suspects for international war crimes trials. The attempt failed, mainly owing to Allied disunity, and German war crimes trials, staged in 1921 with obvious reluctance, proved unsatisfactory.
Yet Germany was not the only perpetrator. The Russian army was accused of widespread acts of violence during the invasion of East Prussia in August–September 1914. Internal German investigations show the Russian troops generally behaved correctly toward civilians, and the total number killed amounted to only 101. Nevertheless, 13,600 German civilians, including 6,500 women and children, were deported to Russia; only 8,300 of them survived the harsh conditions. The tsarist army also embarked on a policy of scorched earth in its retreat in 1915, destroying supplies and buildings, and deporting civilians. At least 300,000 Lithuanians, 250,000 Latvians, around 400,000 ethnic Germans, 500,000 Jews, and 743,000 Poles were driven east into Russia for fear they would assist the enemy. How many died in consequence will probably never be known. The Austro-Hungarian invasions of Serbia in 1914 and 1915 were accompanied by allegations of atrocities against the population; although this is still underresearched, it appears that at least 1,000 civilians were killed.
The most significant case of the killing of noncombatants was the genocide of the Armenians by the Ottoman Turkish state. Successive Turkish governments, into the early twenty-first century, have denied that this crime occurred, but there is consensus among non-Turkish scholars that at least 800,000 Armenian Christians, and probably more than one million, were killed immediately or died during deportation marches from their homes in eastern Anatolia or in camps in Syria in the period from April 1915 to mid-1916. Because this crime was carried out by a state against its own subjects and was not a "war crime" on a narrow definition of international law, the European Allies at the Paris Peace Conference attempted to prosecute the perpetrators before an international tribunal under the new term of "crimes against humanity." This was rejected, however, by the U.S. delegation, which thought the concept lacked precision and was morally arbitrary. Trials carried out under British pressure in Istanbul in 1919 resulted in the prosecution of a few minor officials, but most of the accused were released without trial. The European Allies nevertheless attempted in 1920 to extradite nine leading Turkish officials for the massacre of the Armenians, which they declared "an act clearly contrary to the laws and customs of war."
The genocide of the Armenians represented the culmination of an explicit policy of "Turkification," which had begun with the persecution of Armenians in the 1890s and resumed in early 1914 when Turkish terror bands expelled 130,000 people (Greeks and Armenians) from the İzmir (Smyrna) region, Thrace, and the Aegean coastline into Greece. By 1923, when the Treaty of Lausanne was signed, 1,250,000 Greeks had been expelled or fled from their historic homes in Anatolia. Many were killed during the process, including at least 10,000 during the burning of Smyrna in 1922. Similar cruelties were involved in the expulsions of Muslims from Greece during and after the war.
The old consensus that enemy soldiers captured during World War I were generally treated in conformity with international law has recently come under closer scrutiny. By and large, enemy soldiers captured during World War I were treated in conformity with international law by France, Britain, Italy, and Germany. There were nevertheless notable exceptions in which many prisoners were the victims of a downward spiral of neglect and deliberate maltreatment, with varying degrees of violence. The most dangerous time was the moment of capture. Article 23(c) of the Hague Convention IV (Laws and Customs of War on Land) prohibits the killing of a soldier who is surrendering or defenseless. Every army committed such killings, although it was not in their self-interest to do so. Most cases probably went unrecorded, being perpetrated in the heat of the battle, but in one instance there was sufficient evidence for the French to attempt a prosecution. On 21 and 26 August 1914 German Major General Karl Stenger gave an order to kill captured French soldiers, including the wounded, on the battlefield at Thiaville. Despite protests from several Germans, about twenty French soldiers were killed. In a war crimes trial in Germany in 1921, Stenger was acquitted. During the Battle of the Somme (1 July–15 November 1916), some British officers also issued such illegal orders, and there were several instances of German soldiers who were killed while trying to surrender. Joanna Bourke argues that the killing of German captives was routine, an "important part of military expediency" (p. 182). In the absence of any systematic investigation, however, it remains an open question how widespread the practice was. Needless to say, no Allied perpetrators of war crimes were put on trial after World War I.
Once captured, the great majority of prisoners in Britain, France, Germany, and Italy survived, although sometimes both sides illegally forced prisoners to work near the front, endangered by gunfire, often in retaliation for similar measures of the other side. The vast extent of exhausting prisoner labor under dangerous conditions, especially but not exclusively on the German side of the western front, indicates that the concept of the prisoner of war as a noncombatant had collapsed by 1916. The eastern and southern fronts presented an even worse picture: German and Austro-Hungarian prisoners were often housed in Russian camps under harsh conditions with insufficient food and inadequate sanitation and medical care. Of the 2,330,000 Austro-Hungarian, German, and Turkish prisoners, 411,000 died in Russian camps (17.6 percent), and the mortality rate of the prisoners taken by Serbia may have been as high as 25 percent. Some 118,000 Russian prisoners died out of the 2.7 million in the hands of Germany and Austria-Hungary (4.4 percent on Austrian figures, but these statistics, cited by Alon Rachamimov, are incomplete and understate the mortality rate). Italian prisoners in Austro-Hungarian captivity fared particularly badly: out of 468,000 men at least 92,451 (19.8 percent on Italian figures) died. By contrast, of the 477,024 mainly Austro-Hungarian soldiers taken captive by the Italians, 18,049 died, or 3.8 percent, a mortality rate similar to the western European norm (3 to 3.5 percent for British and French prisoners in Germany).
Poison gas warfare was explicitly forbidden under Article 23(a) of the Hague Convention IV. The first use of lethal gas in the war—in April 1915 by the German army—was condemned by the Allies as cruel and illegal, but the British and French immediately began preparations to respond in kind (and were able to by September 1915). Both sides developed ever more poisonous chemicals, and by the end of the war a total of 112,000 tons of gas had been used, of which the Allies deployed 60,000 tons. The dubious Allied justification for their use of gas was that of "legitimate reprisal," a dangerous concept that was not contained in the Hague Conventions, although it was familiar in customary laws of war.
Another controversial aspect of the laws of war was naval blockade. Did the Allied naval blockade of Germany and Austria constitute a war crime? On the face of it, the answer is straightforward: blockade and the confiscation of enemy goods or ships on the high seas were allowed under the Declaration of Paris of 1856; the Declaration of London of 1909 extended the rights of neutral shipping and restricted the type of goods liable to seizure as contraband, but Britain had not ratified it when war began in 1914. Although the majority in the British Admiralty was skeptical of the efficacy of economic warfare, a strategy of blockade was implemented immediately after the war began. The dominant scholarly (and popular) view is that the blockade was illegal and led to serious food shortages causing great suffering among German civilians. In the last two years of the war, average rations for civilians often dropped below 1,000 calories per day (half of minimum requirements), and on average adults lost 20 percent of their body weight during the war. According to postwar German estimates, 700,000 civilians died as a result. There was no question in the minds of German politicians and lawyers in the 1920s that the "British hunger blockade" was a war crime. Historians of the British Navy (Arthur Marder, A.C. Bell), while upholding its legality, avidly supported the thesis that the blockade caused hunger and demoralization. Avner Offer, by contrast, has argued that while the blockade caused a reduction in food supplies, Germany did not starve.
A balanced judgment would recognize that the blockade was intended to target the civilian population, and thus represented a step on the road to total warfare. It was not against the letter of the law (the only violations of law being the interference with the rights of neutral shipping), but it was contrary to the spirit of international law, which sought to protect civilians from war. But it was also not the cause of mass death; given that Germany imported only about 10 percent of its food before the war—unlike Britain, which imported two-thirds—there had to be many other factors that contributed to the widespread hunger in the German civilian population during the war.
German U-boat warfare against Allied warships and merchant ships was also not as such illegal. The manner in which it was conducted, however, flouted the laws of war, because these laws held that the crew and passengers of a sinking merchant ship had to be rescued. U-boats did not have the space to do so. Allowing the passengers and crew the time to get into the lifeboats increased the risk that the U-boats, vulnerable on the surface, could be attacked by warships. By February 1915 the pressure of radical nationalists and frustration at the lack of progress in the land war impelled the German government to declare the waters around the British Isles to be a "war zone," in which all ships would be sunk without warning. Dramatic confirmation of the new policy came on 7 May, when the Lusitania, a large British luxury liner, was sunk off the coast of Ireland en route from New York to Liverpool; 1,198 lives were lost, including 127 Americans. Germany suspended unrestricted submarine warfare in the Atlantic soon after American protests in August 1915, but the army and the navy clamored for its return. They had their way by February 1917, when Germany resumed all-out submarine warfare. The government believed the navy's calculation that so many ships would be sunk that Britain would starve and be forced to sue for peace by 1 August 1917 but was conscious that it was a last, desperate resort, because it broke international law and would provoke the United States to enter the war. Germany's attempt to starve Britain cost the lives of 14,722 merchant (i.e., civilian) seamen. American intervention, which duly came, was thus prompted by what was seen as a war crime. President Woodrow Wilson, in his address to Congress declaring war on Germany, denounced the submarines as "pirates" and "outlaws." Differentiating between the British blockade and German submarine warfare, he said: "England's violation of neutral rights is different from Germany's violation of the rights of humanity."
Although there was self-evidently a difference between the democratic and the authoritarian states in their respect for the laws of war, democracies could also descend to the level of their enemies in ruthless behavior. In Britain's war against the Irish Republican movement (1919–1921), hostage taking, "human shields," and lethal reprisals against unarmed and uninvolved civilians were all used before a truce was called and British forces withdrawn. In the attempt to retain control of oil-rich Mesopotamia (now Iraq) in the 1920s, the British air force attacked the towns and villages of rebellious tribes, dropping bombs and mustard gas indiscriminately. France continued to use forced labor in its colonies throughout and after the war, and it suppressed colonial independence movements with overwhelming force: the bombardment of Damascus (1925) killed several hundred people, and 700 Vietnamese liberation fighters were executed in 1930 alone. Before the United States took over the latter conflict with its own methods, the French probably managed to kill at least half a million Vietnamese. In its struggle to combat the Algerian national liberation movement in the war from 1954 to 1962, the French army routinely used torture, population deportations, and summary executions of prisoners. British decolonization after 1945 was by comparison a relatively benign process in which war crimes were largely conspicuous by their absence.
Between the world wars there was a historic shift in the nature of warfare in general and war crimes in particular. The result was what some historians have called a "degeneration" of warfare, with a terrible increase in combatant and noncombatant loss of life. Whereas civilians accounted for 5 percent of the war dead in World War I, the proportion in World War II was 50 percent. There were two main causes for this dramatic jump: the revolution in the technology of war, primarily aerial warfare, and the revolution in ideology, primarily racial warfare and the response to it.
The fact that civilians had not suffered mass casualties from aerial bombardment during World War I was due less to observance of the laws of war than the state of development of the technology of aerial warfare. By the end of World War I, however, the potential for mass destruction from aerial bombardment was clearly visible, and it was realized in almost every war since then.
During World War II, first German and then British air strategy targeted enemy civilians to kill them; reducing their morale and destroying the economy were equally important objectives but could be achieved only by killing people. This made it very different from Allied economic warfare during World War I, which could achieve its objectives practically without bloodshed. The Germans, having practiced on the Spanish town Guernica in 1937, bombed Warsaw in 1939 and Rotterdam in 1940, causing thousands of casualties. This deliberate flouting of international law was intended to terrorize the population and provoke quick surrender. The same strategy when applied to British cities provoked instead a crescendo of bombing of German cities starting in 1941 and culminating in the obliteration of half of Hamburg in August 1943 and of Dresden in February 1945. While German bombs killed some 60,000 British civilians, British (and American) bombing killed ten times as many: 593,000 German civilians. The Allied war on Nazi Germany was understood at the time as a "just war," a judgment that has stood the test of time; yet it is difficult to escape the conclusion that aerial warfare on civilians was neither effective nor lawful.
Only after Nazi warfare had demonstrated its murderous nature had Britain turned to aerial war as a strategic last resort. The Nazi regime and German military had no such compunctions. They were agreed that the manner of their warfare was to be criminal from the start. Germany launched a series of wars of aggression, breaching the letter and spirit of existing international law (the Hague Convention and the Kellogg-Briand Pact of 1928 renouncing aggressive war); their essence was a war of racial-biological annihilation to allow the German "race" to take its place at the top by exploiting the inferior races and exterminating those deemed vermin. On 22 August 1939 Adolf Hitler explained to Wehrmacht (armed forces) commanders how the forthcoming war against Poland was to be waged: "Close your hearts to pity. Act brutally. Eighty million people must obtain what is their right. Their existence must be made secure. The stronger man is right. The greatest harshness" (Documents on German Foreign Policy, ser. D, vol. 7, doc. 193). The elimination of the Polish intelligentsia, nobility, Catholic priests, and Jews was conceived as part of the policy of "ethnic redistribution" (völkische Flurbereinigung), an idea that went back to a proposal of General Erich Ludendorff in the occupation of eastern Europe in World War I; it was associated with Lebensraum, the creation of "living space" for German colonists in the east. The chief of the armed forces high command, General Wilhelm Keitel, was fully informed of the intention to carry out the mass killings in September 1939, and although these were carried out by the SS and police units, the army was closely involved in the deportations of Jews; soldiers witnessed and in some cases carried out executions of Jewish men, women, and children, and of Polish prisoners of war. The army was thus the instrument of racial war, which "broke through the international legal boundaries of war as a military conflict" (Wildt, p. 479). These war crimes opened the road to policies of genocide.
The Nazis were not the only perpetrators of war crimes in Poland. At the same time as the German invasion, Soviet forces entered from the east in line with the German-Soviet Nonaggression Pact of August 1939. Of the 240,000 Polish soldiers taken prisoner by the Red Army, some 4,000 officers were shot in the back of the head in the spring of 1940 and buried in mass graves at Katyń Forest near Smolensk, which German forces discovered and publicized in 1943. Despite Soviet accusations that this was a Nazi massacre, independent forensic and Polish witness evidence corroborated the German claim that the NKVD, the Soviet secret police, was responsible. The official denial was maintained until the end of the existence of the Soviet state; only in 1992 did the temporary phase of glasnost (openness) under Mikhail Gorbachev permit an admission of Soviet responsibility. Documents were published showing that in March 1940 Lavrenty Beria, director of the NKVD, had recommended the execution of over 25,000 Polish officers, landowners, civil servants, and others. Altogether the NKVD killed 15,000 Polish officers and policemen (22,000 in another estimate). Evidently, the intention was not to wipe out a people but to deprive Poland of independent leadership by eliminating its military and political elite. Soviet repression, with 100,000 Polish civilians arrested and 18,000 shot, and tens of thousands of deaths during deportation to Siberia, can nevertheless only be termed a crime against humanity.
Of the systematic brutality of the Soviet regime in the era of Joseph Stalin (1924–1953) there cannot be any doubt. The policy of incarceration and execution of real and imagined opponents had consumed millions of lives in the 1930s. When the war came, political prisoners and the many suspected of espionage were liquidated by the NKVD to stop them from falling into German hands: 80,000 to 100,000 in Ukraine alone, according to an American estimate. Entire ethnic minorities suspected of potential sympathy for the invader were deported east: among them the Kalmyks, Ingush, and Crimean Tartars, and 400,000 Volga Germans and 140,000 other Germans. In the effort to impose draconian discipline in the Red Army in the face of the Nazi invasion, thousands of Soviet soldiers were executed for alleged cowardice, disobedience, or desertion. Soviet treatment of German prisoners of war was in flagrant breach of international law, regardless of the Soviet nonratification of the 1929 Geneva Convention. Countless German soldiers who were captured were shot on the spot, despite repeated orders from senior commanders to stop the practice. In total, 1.1 million out of 3.2 million German prisoners (34 percent) died in Soviet captivity, but because this figure includes the many men captured at the end of the war, it conceals the much higher death rate for Germans captured during the war, of whom perhaps as many as 90 percent died. As the war ended, millions of Germans were forced to leave their homes in territories that were allocated to Poland and Russia and were expelled to the west in circumstances of great cruelty; according to the official West German documentation 75,000 to 100,000 civilians were killed in the first few weeks of the Soviet occupation. This amounts to a Soviet policy of "ethnic redistribution."
While the Soviet system under Stalin was ultimately responsible for more deaths than the Nazi regime, only a small proportion of them were in fact war crimes; Soviet warfare did not entail a state policy of mass elimination of enemy populations. The ferocity and cruelty resulted from the extreme emotions of hatred, anger, and the desire for vengeance. Germany, by contrast, entered the war against the Soviet Union with a systematic plan to annihilate entire populations, decided on during the preparations for Operation Barbarossa (the code name for the invasion of the Soviet Union). Leading Nazi officials and the army leadership reached consensus by February 1941 that the territory to be invaded would be forced to provide a food surplus to feed Germany; in the process thirty million inhabitants would be killed or starve to death. This amounted to the planning of a vast war crime, a starvation strategy perpetrated for economic reasons, underpinned with the ideology of racism. Hermann Goering (plenipotentiary for the four-year plan) explained that occupied eastern Europe was to be economically exploited using colonial methods. The policies of genocide were thus inseparable from Nazi warfare.
On 30 March 1941, well before the attack on the Soviet Union, Hitler told his armed forces commanders: "We must forget the concept of comradeship between soldiers. A communist is no comrade before or after battle. This is a war of extermination" (cited in Förster, 1998a, p. 497). The army was a willing accomplice. Field Marshal Walther von Brauchitsch, the army commander in chief, told top commanders on 27 March: "The troops have to realize that this struggle is being waged by one race against another, and proceed with the necessary harshness" (cited in Förster, 1998a, p. 485). German treatment of Soviet prisoners of war, a story that has long been left untold in the shadow of the Holocaust, was especially brutal, as well as illegal. The prisoners were the victims of the ruthless starvation policy: quartermaster-general Eduard Wagner told army commanders on 13 November 1941, "non-working prisoners of war in the camps will have to starve" (cited in Messerschmidt, pp. 558–559). Of the 5.7 million prisoners, some 3.3 million (58 percent) died from hunger, disease, and maltreatment.
Some of the worst violence was visited upon the people of eastern Europe in connection with partisan (or guerrilla) warfare. The German commanders preparing the invasion of the Soviet Union decided that the population's right to defend itself and take up arms spontaneously, enshrined in Article 2 of the Hague Convention IV, was void. Not only the "freeshooters" (Freischärler), but also "the civilian who calls for obstruction (e.g. propagandists, leaflet distributors, disobeying German orders, arsonists … etc.)" was to be "liquidated" (Horne and Kramer, p. 407). While this was clearly unlawful, German practice regarding resistance to occupation appeared to be on better legal grounds, because Article 2 of the Hague Convention IV made provision only for popular resistance to invasion, not occupation. Article 42 stated, however, that a territory was "considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised."
In this context, war crimes were of three main types. First, guerrillas were to be "ruthlessly finished off by the troops in combat or while trying to escape," according to a decree of Keitel, chief of armed forces high command, on "the exercise of war jurisdiction … and on special measures" (Kriegsgerichtsbarkeitserlaß) issued on Hitler's behalf on 13 May 1941 (cited in Förster, 1998a, p. 501). This breached the law on giving no quarter to surrendering combatants.
Second, the Germans devoted great resources to tracking down partisans and their supporters. To this day, it is self-evident to many writers on military affairs, both German and non-German, that guerrilla fighters are illegal combatants who lose the right to be treated as prisoners of war. The German army, however, never fully established its authority, for behind the German lines large areas of forests and many villages were in the hands of the partisans. Partisan resistance in the USSR started with relatively small, dispersed units of Soviet soldiers who found themselves behind the lines because of the rapid advance of the German troops following the narrow invasion paths driven by the tank units; but by 1942 there were at least 100,000 or 150,000 partisans, and that number increased year by year. Captured partisans or suspects were tortured to squeeze information from them and then executed. The military police alone murdered 12,000 suspected partisans in occupied Soviet territory in the first half of 1942, and 21,000 in the following nine months. The regular army in the central area killed 63,257 partisans or partisan suspects by 1 March 1942. Many, probably most, of the victims were not even active partisans—they were Soviet soldiers who had been stranded behind the lines, had thrown away their weapons, and were peacefully working on farms.
Third, partisan attacks on the Germans were punished with reprisals on the nearby civilian population. Keitel's decree instructed that if the army had been "insidiously or treacherously" attacked, wherever the assailants could not be immediately identified, "collective forcible measures" against suspect localities could be ordered by battalion commanders. In language and doctrine this directly recalled the army's conduct in 1914. On 23 July 1941, after Stalin's call for all-out partisan war, the German armed forces command issued a directive stating that the army would break resistance "not by the legal punishment of the guilty, but by striking such terror into the population that it loses all will to resist" (Förster, 1998b, p. 1197). In Belarus (White Russia), for example, the Germans attempted to eliminate the entire population of 628 villages in reprisal for partisan activity, killing about 83,000 people in the process. Altogether, German forces killed about 345,000 people in Belarus in suppressing "partisans," although not more than one in ten of the victims were actually partisans. In the great majority of cases there was no armed resistance. Most victims were women and children, and the killing was carried out with extreme brutality: torturing, shooting, burning, exploding grenades and shells, gassing, stabbing, hanging, and drowning. In addition, 700,000 prisoners of war, 500,000 or 550,000 Jews, and 100,000 others were killed or deliberately starved (Gerlach, p. 1158). In total, of the 9 million remaining in Belarus when the Germans invaded, 1.6 million or 1.7 million, or 18 to 19 percent, perished.
Keitel's decree of 13 May, and the "commissar order" of 6 June 1941, which laid down that political commissars in the Red Army and in civilian administration were to be liquidated, were intimately connected with the Nazi view that the coming war was to eliminate the "Jewish-Bolshevik intelligentsia." General Franz Halder, chief of the army general staff, justified the Kriegsgerichtsbarkeitserlaß by saying that every civilian was a potential "bearer of the Jewish-Bolshevik worldview." These criminal orders demonstrate that the Nazi policies of genocide of the Jews were not isolated from the course of the war. By September 1941, tens of thousands of Jewish men were executed alongside alleged Bolshevik commissars, while hundreds of thousands were deported into ghettos; starting in August 1941 Jewish women and children were also executed. The notorious massacre of over 33,000 Jewish people from Kiev at Babi Yar in September 1941 is one of several examples of close cooperation between the army and SS. At least 140,000—but possibly up to 600,000—Soviet prisoners of war alleged to be Bolshevik commissars were shot under the commissar order.
The perpetrators of mass murder in eastern Europe were not, as was long assumed, mainly fanatical Nazis and SS men. Just over half the civilian victims and prisoners of war in Belarus were killed by regular army units, and about 45 percent by the SS and police and their local auxiliaries. These figures can probably be extrapolated for the rest of occupied Soviet territory.
Warfare in western Europe had at first appeared to have a more humane face. Every German soldier had in his pay book a copy of the Hague Convention IV, and the Geneva Convention was also respected. During the invasion of western Europe in 1940 the French were astounded to see the Germans conduct a chivalrous war. There was one ominous exception: the Wehrmacht killed upon capture up to 4,000 black Africans serving in the French army. All of France was occupied (or was ruled until 1942 by the collaborationist government of Vichy), and resistance until 1944 could thus be regarded as illegal; naturally, this did not make reprisals against the civilian population or the execution of hostages permissible. Starting in June 1944 the French Resistance had a firm legal basis in the Allied invasion, as did that in Italy starting in September 1943. In Yugoslavia, Tito's communist partisan movement captured a town as early as August 1941 and managed to hold it until November. Yet in contravention of the laws of war the Germans carried out terrible reprisals everywhere, summarily executing captured combatants and killing uninvolved civilians such as at Oradour-sur-Glane in south-central France. There, on 10 June 1944, a Waffen-SS division, in "reprisal" for a Resistance attack, followed orders to "burn down the village and exterminate everyone from babies to old persons"; 642 inhabitants were killed. When Italy capitulated to the Allies in September 1943, the German army reacted by immediately occupying the zones not yet liberated by the Allies and ordering the disarming of the Italian armed forces. Resistance was punishable by death, and in flagrant contravention of Article 23(c) of the Hague Convention IV at least 6,794 captured Italian officers and soldiers were executed, more than 5,000 of them in the notorious killings on the island of Cephalonia. In hundreds of villages and towns across Italy civilians were killed in the antipartisan campaign, in which unarmed and uninvolved men, women, and children were declared guilty by association with the Resistance (580 Italian children under age fourteen were killed; in total, 9,200 civilians were killed). In Civitella, near Arezzo in Tuscany, 251 were killed; 335 were killed at the Ardeatine Caves in Rome; and 770 were killed in Marzabotto, near Bologna. These were war crimes and publicly denounced as such by the Allies in 1944, yet prosecution of the criminals was shamefully delayed by the politics of the Cold War until the 1990s.
Finally, sexual violence also constituted a war crime. Although rape was a punishable offense in the German army (and perpetrators were sentenced in some cases in western Europe to ten years in jail), it was often tolerated in eastern Europe, and sexual violence in the form of forced prostitution was widespread, with the establishment of brothels for the army and SS, even in the concentration camps. Internal German reports consistently estimated that about 50 percent of men had been involved in sexual relations with women in eastern Europe, the majority of which must have been de facto rapes. Yet there was no Nazi policy of rape as a war strategy, unlike the hundreds of thousands of rapes that the victorious Red Army soldiers committed on German women in 1945. Stalin and his army commanders knew about this and condoned it, indicating that it was a policy to humiliate the Germans in defeat and wreak vengeance for their war crimes. The absence of prosecution of these German crimes at Nuremberg and in subsequent trials was probably due to the awareness of the guilt of Allied armies in this regard.
The chronicle of war crimes suggests that Europe was a peculiarly bloody place during the twentieth century. Yet for the great majority of people alive in the early twenty-first century, war crimes have been no more than a secondhand memory, passed down by school history lessons, countless films and television documentaries about World War II and the Holocaust, and possibly through the narratives of older family members. This collective memory in contemporary culture means that war crimes are an ever-present latent trauma, stronger in European societies that experienced wartime occupation, repression, and genocide, but by no means absent in countries without such direct experience, such as Britain.
There were so many varied categories of war crimes it appears difficult to deduce a single explanatory theory. Certain characteristics, however, do emerge. Two kinds of states tried to take shortcuts to "victory": conservative authoritarian states seeking to preserve the internal status quo, and revolutionary states (on their self-definition) seeking to overturn the established internal or external order. War crimes could take military form in ruthless conduct toward perceived and actual enemies, or they could result from the invention of the notion of a pure national ethnicity and the geographic exclusion or even physical elimination of the "other," whether as internal or external population. Not only Nazi Germany but also the Soviet state under Stalin treated entire population groups as potential enemies, the former with explicitly genocidal goals. Democracies tended to forswear racial, social, or ideological definitions of citizenship and neither in internal nor in external policy in war did they attempt to attain their aims through the commission of war crimes. The major exceptions were in colonial warfare and aerial warfare against civilian populations as a response to fascist war.
The nationalist chimera of the ethnically pure nation-state, the impulse for so many war crimes, was in practice laid to rest in western Europe after 1945. It was deliberately resurrected in the 1990s, however, by ex-communist politicians seeking to retain their power in Yugoslavia, where it provided the impetus for the commission of war crimes. The response of Western European nations and the United States to these war crimes, however hesitant, however imperfect, shows that the latent trauma in collective memory was strong enough to impel their governments to act to protect the populations of Slovenia, Croatia, Bosnia, and Kosovo, ultimately forcing a process of democratization on Serbia itself and putting major perpetrators on trial for war crimes.
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Grave offenses against the laws of warfare entailing the penal responsibility of individuals constitute war crimes, long punished according to national laws and procedures. At the international level, war crimes were first clearly defined after World War II by the Charter of the International Military Tribunal. The international experience with prosecuting and punishing war criminals was followed by the codification of rules in the 1949 Geneva Conventions, the 1977 Additional Protocols, the statutes of international criminal tribunals for former Yugoslavia and Rwanda, and most recently, in the Statute of the International Criminal Court.
Much earlier precedents for punishing war crimes can be found in ancient Greece and Rome, the Laws of Manu in India, the code of Bushido in Japan, the Old Testament and the Qur'an. Violations of the laws and customs of war were punished by military commanders or national tribunals. Internationally, the first reported trial against a war criminal took place in Breisach in 1474, and in which Peter of Hagenbach was condemned for "crimes against the laws of man and of God."
all wanton violence committed against persons in the invaded country, all destruction of property . . . all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense. A soldier, officer, or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior.
The Oxford Manual on the laws of war on land, adopted in 1880 by the Institute of International Law, provided in Article 84 that "offenders against the laws of war are liable to the punishments specified in the penal law." Article 3 of the 1907 Hague Convention respecting the laws and customs of war on land only required that "a belligerent party which violates the provisions of the . . . Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces." No individual personal responsibility was yet introduced into international law.
World War I led to a major step forward in the development of the rules concerning war crimes. Offenses against the law of war were prosecuted by national courts of several belligerent countries, and the Treaty of Versailles (1919) proclaimed that the responsibility for these offenses fell to the German emperor. However, an attempt to create an international court was opposed by the United States. The Dutch government granted asylum to the now-deposed emperor, William II of Hohenzollern, who could then not be tried by the special tribunal envisaged by the treaty.
Article 228 of the treaty also stated that "the German Government recognizes the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war." The persons accused of the crimes, however, were not handed over. Instead, Germany tried some of the accused before the Supreme Court of Leipzig, created expressly for this purpose. Of the 896 individuals accused of war crimes, only 45 were tried, and only 9 were convicted. The sentences were light and the convicted prisoners were pardoned a few years later.
Prosecution of War Crimes during and after World War II
Determined not to repeat the problem of allocating war-crimes responsibility after World War I, the Allied powers tried a new approach during World War II. They repeatedly warned the Axis powers of their responsibility for war crimes. The Moscow Declaration of 1943 distinguished between two sorts of war crimes. The first category of crimes were committed by German soldiers and members of the Nazi party who were responsible for, or took a consenting part in atrocities, massacres, and executions. They were sent back to be tried and punished in the countries where their crimes had been committed. The second category of German war criminals constituted those whose offenses had no particular geographical localization. These would be punished by joint decision of the governments of the Allies.
For the first category of war criminals, the first trials were held in Krasnodar (Russia) and Kharkov (Ukraine) in 1943, before the war had ended. Military tribunals for the second category of criminals were set up in Germany's occupation zones and were regulated by Law No. 10, of the Allied Control Council, which was passed on December 20, 1945 and which established a uniform basis of material law and procedure.
International prosecution was based on the London Agreement for the prosecution and punishment of the major war criminals of the European Axis Power, signed on August 8, 1945. This agreement includes the Nuremberg Charter of the International Military Tribunal. Article 6 of the charter established individual responsibility for crimes against peace, war crimes, and crimes against humanity. It was the first time that this terminology appeared in an international treaty. The definitions of each category of crime, as given by the charter, was only exemplary, not exhaustive.
The principles established by the Charter and the judgment of the Nuremberg tribunal were affirmed and recognized by the United Nations General Assembly Resolution 95(I), which was adopted on December 11, 1946. They were not fully formulated until later, however—in 1950, by the International Law Commission. Another tribunal, similar to that of Nuremberg, was established in Tokyo and was based on a Special Proclamation of General Douglas MacArthur as the Supreme Commander in the Far East. MacArthur took this action by virtue of the authority delegated to him by the four Allied Powers at war with Japan.
Non-Applicability of Statutory Limitations
In order to avoid the accused escaping prosecution because of statutory limitations to the crimes committed during the World War II, member states drafted the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, which was adopted by the United Nations General Assembly on November 26, 1968. At the regional level, the European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes was signed at Strasbourg on January 25, 1974. This new convention narrowed the definition of crimes against humanity in comparison with the United Nations Convention.
The 1949 Geneva Conventions and 1977 Additional Protocols
The four Geneva Conventions adopted on August 12, 1949, underlined the importance of domestic legislation and domestic jurisdiction in the prosecution and punishment of war criminals. According to the Conventions, the contracting parties must:
- enact legislation necessary to provide effective penal sanctions for grave breaches;
- search for those who have committed or gave the order to commit grave breaches;
- bring such persons before its courts, regardless of their nationality, or hand over such persons for trial to another contracting party for trial and punishment; and
- take measures necessary to suppress all acts contrary to the provisions of the convention other than the grave breaches.
Grave breaches are defined in common Articles 50/51/130/147 as acts committed against persons and property protected by the conventions, including:
- willful killing;
- torture or inhuman treatment, including biological experiments;
- willfully causing great suffering or serious injury to body or health;
- unlawful deportation or transfer or unlawful confinement of a protected person under the Fourth Convention;
- compelling a protected person to serve in the forces of a hostile Power; willfully depriving a protected person of the rights of fair and regular trial prescribed in the conventions;
- taking of hostages
- extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
The First Additional Protocol revisited the definition of war crimes, specifying the conditions that would render such crimes punishable by law. It is important to emphasize that not all war crimes are, in fact, "grave breaches" as listed in the Geneva Conventions and the First Additional Protocol. The broader conceptual category of war crimes covers both grave breaches and other serious violations of the laws and customs of war, but according to the First Additional Protocol, not every violation of the laws of warfare "would of necessity constitute a punishable act."
The First Protocol supplemented, developed, and clarified the "system of repression" stipulated in the 1949 Geneva Conventions by explicitly accepting the same list of "grave breaches" as were defined in the Conventions, and by requiring that the system of repression, whereby war crimes may be prosecuted and punished, be applied to these grave breaches. In addition, the protocol expanded the list of grave breaches to include any willful act or omission that seriously endangers the physical or mental health or integrity of any person who is in the power of an enemy and which violates any in a series of specified prohibitions. The specified prohibited acts include any unjustified act or omission or medical procedure not required by the state of the victim's health; physical mutilation; medical or scientific experiments; or the removal of tissue or organs. For an act to constitute a violation it must have been committed willfully, in violation of relevant provisions of the Protocol, and it must have caused death or serious injury to body or health. The Protocol goes on to list the following acts as criminal under international law
- Making the civilian population or individual civilians the object of attack;
- Launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects;
- Launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects;
- Making non-defended localities and demilitarized zones the object of attack;
- Making a person the object of attack in the knowledge that he is hors de combat;
- The perfidious use of the distinctive emblem of the red cross, red crescent, or red lion and sun, or of other protective signs recognized by the Conventions of this Protocol;
- The transfer by an occupying power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;
- Unjustifiable delay in the repatriation of prisoners of war or civilians;
- Practices of apartheid or other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination;
- Intentionally targeting clearly recognized historic monuments, works of art, or places of worship which constitute the cultural or spiritual heritage of peoples, resulting in the extensive destruction thereto, when such locales or objects have been accorded special protection and when these targets are not located in the immediate proximity of military objectives;
- Depriving a person protected by the Conventions and the Protocol of the rights of fair and regular trial.
In addition to the grave breaches, other serious violations of the laws and customs of war, including those stipulated in Article 23 of the 1907 Hague Regulations, remain war crimes and are punishable within the framework of customary international law.
The Nuremberg principles specified that complicity is also a crime under international law. Therefore, joint offenders and accessory accomplices are also punishable. An individual who commits a war crime is personally liable, regardless of his rank or governmental position. The commander is responsible, as are his subordinates for such violations. Military commanders must prevent or suppress war crimes, report breaches, and ensure that members of armed forces under his command are aware of their obligations.
Treatment of Offenders
An offender who benefits from the status of prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts and the same procedure as would be used in trying the members of the armed forces of the detaining power. The Convention and the Protocol prescribe judicial guarantees of the fair treatment for all military and civilian offenders. Even if a person does not benefit from the status of protected persons, that person will always benefit from the fundamental guarantees provided by human rights and by Article 75 of the Protocol, which express rules of customary law. The death penalty cannot be imposed if such penalty has been abolished by the detaining power.
Repression of War Crimes after 1945
Several domestic jurisdictions prosecuted and punished war criminals after 1945. One case was the massacre of forty-seven Arabs in Kafr-Kassem in October 29, 1956. Another occurred in 1958, when a military tribunal in Jerusalem condemned two officers and six border guards to seven to seventeen years imprisonment. The sentence was later reduced. In the United States, in 1971, a court martial sentenced U.S. Lieutenant William Calley to life imprisonment for his responsibility in the My Lai massacre of March 16, 1968, in which 347 civilians were killed in a village 510 kilometers outside of Saigon, Vietnam. His sentence was later reduced to 20 years, and he was paroled in 1974. Two other officers received disciplinary sanctions for their involvement in the same incident.
After the invasion of Kuwait in 1990, the United States, the United Kingdom, and the UN Security Council warned Iraqi authorities to respect the rules of war. The Security Council passed Resolution 674 in October 29, 1990, reaffirming the duty of Iraq "to comply fully with all terms" of the Fourth Geneva Convention and proclaiming Iraq's liability, as well the liability of individuals, for grave breaches. The resolution invited the UN member states "to collate substantial information in their possession or submitted to them on the grave breaches by Iraq . . . and to make this information available to the Security Council." In the wake of the second Iraq war, the provisional Iraqi government adopted the statute of a special tribunal in 2003 to try war criminals, including Iraq's former president, Saddam Hussein.
Crimes Committed in Former Yugoslavia and in Rwanda
During the conflicts in Yugoslavia, the UN Security Council required compliance with the rules of international humanitarian law and affirmed individual responsibility for violations. The United Nations created a commission of experts to investigate the crimes committed on the territory of former Yugoslavia. With Resolution 808 (1993), the Security Council established the International Tribunal for the Former Yugoslavia (ICTY). The tribunal deals with grave breaches of the Geneva Convention, violations of the laws and customs of war, genocide, and crimes against humanity (Articles 2 through 5). The definition of war crimes was based on the provisions of the Geneva Conventions and customary rules of international law.
With Resolution 955 (1994), the Security Council established the International Criminal Tribunal for Rwanda (ICTR), which was responsible for prosecuting genocide and other serious violations committed in the territory of Rwanda and its neighboring between January 1 and December 31, 1994. The list of crimes includes genocide, crimes against humanity, and violations of Article 3 of the Geneva Conventions and of the Convention's Additional Protocol II. The crimes were limited to those committed in the course of the internal conflict.
The statutes of both tribunals affirmed the principle of individual responsibility for planning, instigating, ordering, committing, or otherwise aiding and abetting in the planning, preparation, or execution of such acts. The concept of command responsibility was included: the official position of the accused does not relieve the person of responsibility nor mitigate the punishment, nor does the fact that the person ordered the acts but did not commit them personally. The fact that an accused person acted on the orders of a superior does not relieve the person of responsibility, either, but "may be considered in mitigation of the punishment."
By April 2004, the ICTY had tried forty-six individuals accused of genocide, war crimes, and crimes against humanity: Twenty-five of the defendants were judged guilty and began serving their sentences, A further sixteen were found guilty but began the process of filing appeals. Three persons were found not guilty on appeal. Two of the accused were acquitted. By the same date, the ICTR had completed trials for twenty cases.
The tribunals have concurrent jurisdiction with national courts, but in cases of conflict, the international tribunals have primacy over national courts and may formally request national courts to defer to them. Both tribunals made significant contributions to the development of international humanitarian law and to criminal law in general. They also helped to define and explain legal norms and establish the path for the future International Criminal Court (ICC). For instance, the appeals chamber of the ICTY, after hearing the Tadic case, came to the conclusion that "customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife."
The Special Court for Sierra Leone
The Special Court for Sierra Leone was established on January 16, 2002, by joint agreement of the government of Sierra Leone and the United Nations. The court was mandated to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean domestic criminal law committed in the territory of Sierra Leone since November 30, 1996. As of November 2003, thirteen persons from all three of the country's former warring factions were indicted by the special court. They were charged with war crimes, crimes against humanity, and other serious violations, including murder, rape, extermination, acts of terror, enslavement, looting and burning, sexual slavery, conscription of children into an armed force, and attacks on UN peacekeepers and humanitarian workers.
International Criminal Court
After several attempts in the past, most notably in 1919 and 1937, the United Nations adopted the Rome Statute of the International Criminal Court on July 17, 1998. The ICC is independent from the United Nations, and its relations with them is governed by an agreement that has been approved by the UN General Assembly. The treaty creating the ICC came into force on July 1, 2002, and by February 19, 2004, ninety-two states had become signatories to the treaty. The ICC's judges and prosecutor were elected in 2003. The court is based in the Hague.
In its founding statute, the ICC enumerates the crimes over which it has jurisdiction. These include genocide, war crimes, crimes against humanity, and crimes of aggression. The ICC accepts the 1948 Genocide Convention's definition of what constitutes the crime of genocide. The Rome Statute also provides a detailed definition of what constitutes a crime against humanity, which is markedly better developed than the definition provided in the Nuremberg Charter. It also defines several other essential terms, including extermination, enslavement, deportation and forcible transfer or torture.
The ICC assumes jurisdiction over war crimes that have occurred "as part of a plan or policy or as part of a large-scale commission of such crimes." These are not the only acts against which the ICC can take action however. According to the Rome Statute, the ICC can prosecute
- (1) Grave breaches of the Geneva Conventions of August 12, 1949;
- (2) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law. The statute then goes on to descript 26 specific prosecutable acts that may be committed in international armed conflicts;
- (3) In the case of an armed conflict not of an international character, the ICC may prosecute any violations of the 1949 Geneva Conventions that have been committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those who are no longer in active combat due to sickness, wounds, detention, or any other cause;
- (4) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, referring to the provision of Protocol II and customary rules of international law.
The Statute specifies that its right to prosecute acts perpetrated in "armed conflicts not of an international character" does not apply to situations of internal disturbances and tensions such as riots, isolated and sporadic acts of violence, or other acts of a similar nature. Moreover, it presupposed that prosecutable violations in noninternational armed conflicts must have taken place in the territory of a state when there is protracted armed conflict between governmental authorities and organized armed groups, or a similarly protracted armed conflict between such groups.
The Rome Statute affirms several broadly accepted legal principles such as nullum crimen sine lege and nulla poena sine lege (there can be no prosecution, nor punishment, for acts that were not prohibited by law at the time). This establishes that, even though an act may today be defined as illegal, that law cannot be applied retroactively to a time when it was not yet a part of the legal code. The statute also affirms the concept of non bis in idem, which disallows double jeopardy: an individual cannot be tried twice for the same offense. In addition, it affirms the principle of individual responsibility, denies prosecutorial jurisdiction over persons less than 18 years of age, and establishes that there is no statute of limitation for the crimes under its jurisdiction. Finally, it expressly holds commanders and other superior officers responsible for acts carried out under their orders, and rejects the defense strategy of claiming immunity for individuals who hold (or held, at the time of the violation) head-of-state status.
These provisions constituted a significant step forward in international criminal law, particularly by filling certain gaps that had been left unaddressed in the Geneva Conventions. For instance, neither the Geneva Conventions, nor their Additional Protocols included a provision to address the defense that an accused was innocent by virtue of acting on the orders of a superior. Article 33 of the ICC's Rome Statute states that, a person who commits a prosecutable crime on the orders of another (a government or military superior) cannot escape criminal responsibility except in certain specific circumstances. The defendant, in such a case, must be able to show the law was manifestly lawful, or that he or she was under a legal obligation to obey orders of the Government or the superior in question or did not know that the order was unlawful. By the very definition of genocide or crimes against humanity, however, any orders to commit such crimes are manifestly unlawful, which makes the defense of "acting on superior orders" extraordinarily difficult to sustain.
The creation of the International Criminal Court is due, in large part, to the efforts of non-governmental organizations (NGOs). A coalition of thirty NGOs was created on February 25, 1995, which quickly grew to 800 by the opening of the Rome Conference (at which the ICC was created) in June 1998, of which 236 were in attendance at the meetings. During the conference, attendees focused on substantive issues and sought to establish the broadest possible jurisdiction for the newly created court. They also worked to create a system of complementarity, by which national courts held primary responsibility for prosecutions; an independent prosecutor, and a court that was free from the interference of any political body, including the Security Council. Other issues addressed by the conference included provisions for restitution for victims, the incorporation of gender concerns within the definition of actionable crimes; and a mechanism to assure the court with adequate funding over the long term.
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Bassiouni, M. C., and P. Manikus (1996). The Law of the International Criminal Court for Former Yugoslavia. Irvington-on-Hudson, N.Y.: Transnational.
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Weyas, A. M. de (1989). The Wehrmacht War Crimes Bureau 1939–1945. Lincoln: University of Nebraska Press.
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.
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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.
Roman philosopher and statesman Seneca (c. 3 b.c.e.–c.e. 65) said that law fell silent during war, but, this is far from the case. Norms regulating behavior in war were the mark of many ancient civilizations. From ancient times to the medieval laws of chivalry, limitations have been imposed in the name of humanity and commonsense on warfare. In the twenty-first century, the laws of war are voluminous and often effective.
These laws are found in treaties such as the four Geneva Conventions of 1949 and the two Additional Protocols of 1977, in the custom and practice of nations, and in the decisions of various international tribunals such as the International Criminal Tribunal for the Former Yugoslavia (ICTY). Military training, in the West at least, almost always includes sessions on the laws of war and the appropriate conduct of hostilities. Lawyers now play a relatively prominent role in advising combatants during war on matters such as targeting, and the treatment of prisoners of war (POWs), and the Gulf War in 1991 was described as the most legalistic war in history.
Despite all this, of course, breaches do occur. The most serious of these breaches are characterized as war crimes or, as the Statute for the International Criminal Court (ICC) puts it, "serious violations of the laws of war." The great landmark in this area of the law, dwarfing other developments, is the Nuremberg Trial in post-World War II (1939–1945) Germany. This trial is often referred to as a war crimes trial, but this is not an entirely accurate designation. In popular commentary on war crimes the term is used to describe any offense taking place in war time. The various crimes committed by the Nazis from the invasion of Poland to the creation of the extermination and concentration camps to the shooting of POWs all seen to belong in the generic category "war crimes."
However, war crimes were simply one of three categories prosecuted at Nuremberg. Alongside war crimes were crimes against humanity, a category of criminality designed to encompass gross human rights violations committed against fellow nationals (e.g., the destruction of the German Jews), and crimes against peace or acts of aggression committed in violation of international treaties. Strictly speaking, neither of these categories belongs in the category of war crimes, although there has tended to be some overlap between crimes against humanity (including the crime of genocide) and war crimes. At Nuremberg war crimes were defined in Article 6 as:
Violations of the laws and customs of warfare [including but not limited to] murder, ill-treatment, deportation … of civilian population of or in occupied territories, murder of ill-treatment of prisoners of war … plunder … destruction not warranted by military necessity.
The key distinguishing feature of war crimes, then, was the target or victims of such crimes: either civilians in occupied territories or POWs. In contrast, aggression was a crime aimed at whole states whereas crimes against humanity were discriminatory acts committed against any civilian population.
Not all failures to comply with the laws of war are war crimes. The photographing of prisoners or the absence of sporting facilities for detainees may be breaches of the laws of war but these do not rise to the level of war crimes. War crimes are a special category of violation giving rise to individual responsibility under international law and defined as such in treaties such as the Geneva Convention. The person who commits such acts can be prosecuted before national or international courts, and, if found guilty, jailed for his or her crimes.
The core crimes are uncontroversial. These are found in the Geneva Conventions and Protocols under the heading: Grave Breaches. For example, Article 147 of the Fourth Geneva Convention includes the following acts in the category of war crimes: killing or torture of prisoners and detainees, taking of hostages, unlawful deprivation of liberty, and unnecessary destruction of property. Importantly, states are under an obligation to seek out and prosecute those thought to be responsible for such acts regardless of their nationality.
In 1977, states convened to elaborate on the laws of war in drafting what became the Additional Protocols to the Geneva Convention. The First Additional Protocol (concerned with international armed conflict) further developed the idea of war crimes to prohibit particular methods of warfare. So, for example, since 1977 at least, attacking civilian objects has been a war crime. In addition, employing methods of warfare with indiscriminate and disproportionate effects on civilian populations is characterized by the Protocol as a war crime.
However, these developments did not significantly change the law as it applied to civil wars or noninternational armed conflict. Indeed, it was possible to argue as recently as 1998 that murder during civil wars was not a war crime. This began to change in cases heard at the ICTY. In The Prosecutor v. Tadic, the first case to result in a conviction, Dusko Tadic (b. 1955), a Bosnian Serb, was convicted of serious violations of the laws of war in internal armed conflict. The ICTY held that war crimes were capable of being committed in internal as well as international armed conflict.
Given the number and devastating effects of civil wars, this marked a major breakthrough in the laws of war. This advance was confirmed in the negotiations for the ICC leading to the drafting of a statute for a permanent criminal court (The Rome Statute). The statute gives the court jurisdiction over war crimes (Article 5) and provides a detailed list of those actions constituting war crimes. The list includes many of the breaches found in the Geneva Conventions, but, in a dramatic departure from existing treaty law, it criminalizes also serious violations of the international humanitarian law committed during civil wars. These include the deliberate targeting of civilians, pillage , attacks on United Nations personnel, and attacks on medical facilities. It should be noted, however, that the court investigates only those cases in which there have been large-scale commissions of war crimes. The intention is, as it always has been in this area of law, that small-scale, isolated crimes be prosecuted in national courts or through military court martials.
The law of war crimes, then, is at its most advanced stage. The Rome Statute, coupled with case law from international tribunals, provide a systematic and detailed normative structure for the prosecution of serious violations of the laws of war. Gaps in this law are relatively few and the major defect, the failure to criminalize brutal conduct during civil wars, has been remedied.
war crimes trials
The existence of legal rules is only half the story when it comes to building the rule of law in a particular area. Institutions, too, are required and, in particular, courts capable of enforcing and developing the law. In the area of war crimes, institutional development has been difficult and slow. Although individuals were tried by court martial and national courts, the first international trials were held in Tokyo and Nuremberg at the end of World War II. These trials mark a breakthrough for the prosecution and punishment of violations of international law.
At Nuremberg, after a trial lasting from November 1945 to October 1946, twenty-two high-ranking Nazi officials were tried of whom twelve were hanged, seven given long jail sentences, and three acquitted altogether. The Tokyo Trial (from May 1946 to November 1948) culminated in the death sentence for seven of the twenty-five defendants and prison sentences for the remainder. Curiously, however, the Nuremberg Trials, although they were the inspiration for human rights law, did not lead to the creation of a permanent international criminal court. It was not until the early 1990s that the international community was provoked into creating international tribunals by atrocities in the Balkans and Rwanda. The ICTY and International Criminal Tribunal for Rwanda have both engaged in the prosecution of war crimes, genocide, and crimes against humanity arising out of the wars in these two areas.
protocol additional to the geneva conventions
The Geneva Conventions refer to a series of international agreements that established codes of conduct for the treatment of the sick, wounded, and dead during periods of war. The first convention was adopted in 1864. The agreements also spell out regulations regarding the treatment of prisoners of war.
Members of signatory nations who are accused of violating the Geneva Conventions are brought before the International Court of Justice at The Hague, Netherlands.
The Geneva Conventions were modified in 1977 when two additional protocols, or amendments, were added. Protocol I offers protections to victims in international armed conflicts. Protocol I and Protocol II together offer protection to guerrillas in civil wars or wars of selfdetermination.
One interesting facet of Protocol I was the addition of an article allowing for the creation of international factfinding commissions. As a result of a fact-finding commission, Bosnian Serb Dusko Tadic (b. 1955) was prosecuted in 1996 for his mistreatment of prisoners of war in northern Bosnia. Tadic was convicted on May 7, 1997.
The most celebrated cases have been those of former prime minister of Rwanda, Jean Kambanda (b. 1955), and former president of Serbia, Slobodan Milosevic (b. 1941). These two tribunals, established by security council decree and with limited territorial and temporal jurisdiction, are often referred to as ad hoc tribunals. The dream of a treaty-based permanent international tribunal with potentially global jurisdiction did not come to realization until 1998 in Rome when the states of the world convened to create the ICC.
The ICC prosecutes the gravest international crimes in cases in which domestic courts have proved unwilling or unable do so. It remains to be seen whether there will be the political will to make the ICC a success. (The United States is in 2005 a strong critic and opponent of the court.)
It would be inaccurate to focus entirely on judicial institutions. Courts become involved only after crimes are alleged to have taken place. In some ways, court proceedings are a symptom of failure. Courts are efforts to punish rather than devices to prevent. The institutions that count most in preventing the commission of war crimes are probably the military and the state itself. When the state takes its international humanitarian law obligations seriously and transmits that commitment to a receptive and responsible military, war crimes occur infrequently. War crimes tend to occur most often where there are poorly organized armies, so there is a natural and causal relationship between military discipline and the capacity to prevent large-scale abuses of the laws of war (a pathological state such as Nazi Germany is an obvious exception to this).
prosecutor v. tadic
In 1997 an international war crimes tribunal found Bosnian Serb Dusan "Dusko" Tadic (b. 1955) guilty of eleven counts of war crimes against humanity. Tadic, a police reservist, was accused of channeling thousands of Muslims, Croats, and other civilians into Serb prison camps, and later torturing and murdering them in a wave of ethnic cleansing. He received a twenty-year prison sentence.
The trial was the first proceeding held by an international criminal court since World War II (1939–1945). In addition, before the Tadic case, no one had ever been convicted of violating the international laws of war for acts committed during an internal conflict. The verdict was also important because it showed that the tribunal process was a fair and feasible way to deal with war-crimes suspects.
Even though Tadic was acquitted on the more serious counts of murder and rape, international observers were pleased with the conviction. They believed it sent a message to the world that individuals involved in any conflict can—and will—be held responsible for their role in any war crimes, crimes against humanity, or other violations of international human rights law.
The future of war crimes law seemed fairly secure in 1998 when the ICC was finally established. Since then, however, there have been some worrying developments. In particular, there is a growing tendency to distinguish those entitled to protection under the laws of war from those categories of personnel who fall outside the scope of these laws. There is little doubt that the new wars—brutal and unconventional—pose a serious threat to the integrity and efficacy of the law of war crimes.
1949 Geneva Conventions and 1977 Protocols. Geneva: International Committee of the Red Cross, 2005. <http://www.icrc.org/ihl.nsf/WebCONVFULL?OpenView>.
Bass, Gary. Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton, NJ: Princeton University Press, 2000.
Charter of the International Military Tribunal for the Far East. New Haven, CT: The Avalon Project at Yale Law School. <http://www.yale.edu/lawweb/avalon/imtfech.htm>.
Jochnick, Chris af, and Roger Normand, "The Legitimation of Violence: A Critical History of the Laws of War." Harvard Journal of International Law 35, no. 1 (1994):49–95.
McCormack, Timothy. "Selective Prosecution." In The Law of War Crimes, ed. Timothy McCormack and Gerry Simpson. Boston: Kluwer Law International, 1997.
Nino, Carlos. Radical Evil on Trial. New Haven, CT: Yale, 1998.
The Nuremberg War Crime Trials. New Haven, CT: The Avalon Project at Yale Law School. <http://www.yale.edu/lawweb/avalon/imt/imt.htm>.
Osiel, Mark. Mass Atrocity, Collective Memory and the Law. News Brunswick, NJ: Transaction Publishers, 1997.
Ratner, S. "The Schizophrenias of International Criminal Law." Texas International Law Journal 33, no. 2 (1999):237–257.
Simpson, Gerry, ed. War Crimes. Aldershot, UK: Ashgate, 2004.
United Nations. Rome Statute for an International Criminal Court. The Hague, The Netherlands: United Nations, 1998. <http://www.un.org/law/icc/statute/romefra.htm>.
United Nations, International Tribunal for the Former Yugoslavia. Statute of the International Tribunal for the Former Yugoslavia, The Hague: United Nations, International Tribunal for the Former Yugoslavia, 1993. <http://www.un.org/icty/legaldoc/index.htm>.
United Nations, International Tribunal for Rwanda. Statute of the International Tribunal for Rwanda. Arusha, Tanzania: United Nations, International Tribunal for Rwanda, 1994. <http://www.ictr.org/default.htm>.
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 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.
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).
Those acts that violate the international laws, treaties, customs, and practices governing military conflict between belligerent states or parties.
Iraq Prisoner Abuse Scandal Inquiries and Trials
In a year marred by an overabundance of bad news for the U.S. in the Iraq conflict, perhaps no story has touched nerves and angered more people than the continuing revelations and trials connected with the Abu Ghraib prison abuse scandal. In addition to the obvious questions about who was responsible and why this conduct was allowed to occur, the scandal and the resulting courts martial of involved soldiers raises issues of just how widespread the abuses have been and whether those higher in the chain of command knew about or even condoned them.
The scandal began in early 2004, when photos leaked to media sources were soon posted on web sites all over the world. The photos seemed to show abuse of Iraqi and other prisoners at the Abu Ghraib prison in Iraq, which was under the control of the 205th Military Intelligence Brigade. These shocking pictures depicted mostly nude, hooded detainees subjected to inhumane cruelties and humiliations, including being depicted in mock sexual acts, being thrown into piles, being collared and leashed, being handcuffed to awkward positions, being threatened with attack dogs, and, apparently, being subject to beatings by smiling, joking military police and interrogation specialists.
In the midst of these revelations, the U.S. Senate Armed Services Committee ordered an investigation on February 10, 2004. The report was completed and submitted by U.S. Army Inspector General Paul Mikolashek on July 22. It contains details on the deaths of 39 Iraqi detainees. On the same day, the Senate committee held hearings that outlined a total of 94 cases of suspected abuse. Two other high-profile probes were conducted: One was an internal probe centering on the activities of military-intelligence personnel and headed by Army General Paul J. Kern, and one was an independent panel review ordered by Secretary of Defense Donald Rumsfeld and headed by former Secretary of Defense James R. Schlesinger. Both of these probes reported their results in late August. The Army probe cited 44 instances of abuse, including several instances of outright torture. The Schlesinger probe told of 300 suspected abuse cases, of which 155 had been completed, yielding 66 determinations of abuse in Iraq and Afghanistan.
Both the Army's probe and the Schlesinger probe determined that officials high in the chain of command were to blame for either contributing to the confusion about what constituted acceptable treatment of prisoners or for learning of alleged abused and failing either to report them or to try to stop them. The Schlesinger probe went so far as to place some blame on top Pentagon officials, including Donald Rumsfeld. As the Schlesinger report stated:
"The abuses were not just the failure of some individuals to follow known standards, and they are more than the failure of a few leaders to enforce proper discipline. There is both institutional and personal responsibility at higher levels."
However, neither probe indicated that abusive tactics and torture were part of a governmental "policy of abuse" or that top officials had encouraged them. The Army probe specified that "a small group of morally corrupt soldiers and civilians" had perpetrated the abuses. The Pentagon and the White House backed up this finding, claiming that the abuses were unfortunate but that they had been isolated incidents confined to the Abu Ghraib prison and that they were not indicative of U.S. policy or character. This assertion would soon be challenged by further findings, and by the soldiers brought to trial for the abuses.
Critics of the administration's policies also point out that the Schlesinger report details President Bush's approval of the concept that suspected terrorists detained in U.S. holding facilities would not be subject to all protections of the Geneva Convention. The report also details Rumsfeld's approval of using nudity, intimidation by dogs, stress positions, and isolation as used in the prison at Guantanamo Bay. This creative skirting of what constituted torture and "strengthened counter-interrogation techniques," critics claimed, might have led to an atmosphere that encouraged abuse.
In December 2004, thousands of pages of documents were released to a coalition of four groups, headed by the ACLU, which had sued to recover them under the Freedom of Information Act. The documents showed that the military had literally hundreds of cases of reported abuse on file in all theaters of operation, dating back to detentions at Guantanamo Bay starting soon after September 11, 2001. Amrit Singh, a lawyer for the ACLU, stated that the documents show that military abuse of prisoners was "widespread and systematic." Army spokesperson Colonel Joseph Curtin countered by pointing out that the documents detail probes and investigations designed to find the perpetrators of the abuses, thus proving that the military takes abuse seriously and has undertaken a concerted effort to stop such incidents.
In all, 23 soldiers and four civilian contractors were determined to have been the main culprits. Of those, many did not have cases brought against them because of a lack of hard evidence. Eventually, eight were charged. Of those, five pleaded guilty and were sentenced, and three have had their cases tried before a military court.
The two most high-profile cases have been those of Army Reserve Specialist Charles Graner and Private Lynndie England. One Syrian prisoner named Graner as the "chief torturer" at Abu Ghraib. Graner appeared in several of the infamous photos, including one in which he gives a "thumbs-up" sign over a seemingly dead prisoner. Private England will be forever remembered as the one holding the leash attached to a collar around a nude prisoner's neck. But the soldiers tried in this case have all told a consistent story: that their superior officers ordered them to abuse, and even to torture, prisoners. Graner, who pleaded not guilty, received a sentence of ten years in military prison out of a possible 15 for his role. Graner insisted that he had just been obeying orders. "We were called upon to violate the Geneva Convention," he said in testimony. "I didn't enjoy it. A lot of it was criminal." Graner's mother observed that "He committed a crime for obeying orders, and he would have committed a crime if he didn't obey orders." Specialist Megan Ambuhl, who received a dishonorable discharge but no jail time, testified that female soldiers had been ordered to sexually humiliate male prisoners and that civilian interrogators had told them to "break" others who were uncooperative.
England's case has taken a few unusual turns. England initially pleaded guilty to all the charges, including conspiracy to mistreat prisoners. However, it was not clear that she had believed, at the time when she had held the leash and performed other acts, that her actions were wrong, which is a necessary component of proving conspiracy. England did not work at the prison and was visiting Graner at the time the photos were taken. She testified that she had known that her actions were wrong but that she had held the leash because she had thought that Graner knew what he was doing. When Graner confirmed that he had ordered England to hold the leash, which contradicted her sworn statements, the judge, Colonel James Pohl, declared a mistrial. This is the only case in the abuse scandal still pending, and no new trial date has been set.
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.
Persico, Joseph. Nuremberg: Infamy on Trial. New York: Viking, 1994.