Prosecution

Crimes against the basic principles of humanity are nothing new to the history of mankind. In nearly all historical cases, investigations never took place, and criminal sentences were never passed on the responsible persons. There was only one conviction in a remarkable case, that of Peter von Hagenbach, in 1474. Charles the Bold, Duke of Burgundy, known to his enemies as Charles the Terrible, had placed Landvogt Peter von Hagenbach at the helm of the government of the fortified city of Breisach, which was located at the French-German Rhine border. The governor, overzealous in following his master's instructions, introduced a regime of arbitrariness, brutality and terror in order to reduce the population of Breisach to total submission. When a large coalition put an end to the ambitious goals of the powerful Duke, the siege of Breisach and a revolt by both his German mercenaries and the local citizens led to Hagenbach's defeat. Hagenbach was then brought before a tribunal initiated by the Archduke of Austria and charged with murder, rape, perjury, and other crimes. The tribunal found him guilty and deprived him of his rank and related privileges. Hagenbach was then executed. This trial is often referred to as the first international criminal law or war crimes prosecution. It kept this distinction until the twentieth century, when the first serious efforts were begun to prosecute and punish persons guilty of international crimes.

World War I Prosecutions

When the Allied and Associated Powers convened the 1919 Preliminary Peace Conference, the first international investigative commission was established. At the conference, Germany's surrender was negotiated and the Versailles Peace Treaty was dictated. This Treaty established a new policy of prosecuting war criminals of the vanquished aggressor state after the end of the hostilities. The legal basis of that policy was laid down in the Paris Peace Treaties concluded by the victorious Allies (Britain, France, Russia, Italy, the United States, and Japan) with the defeated Central Powers (Germany, Austria, Bulgaria, Hungary, and Turkey) in 1919. Four groups of offenses were created: crimes against the sanctity of the treaties, crimes against international morality, war crimes (defined in a narrow sense), and violations of the laws of humanity. The first three offenses were integrated in Articles 227 and 228 of the Versailles Treaty. Crimes against the laws of humanity were omitted from the treaty because the United States of America argued that this offense could not be exactly defined and thus was too vague to serve as a basis for prosecutions. The United States also doubted that there was a universal standard for humanity.

The Versailles Treaty was the first international treaty to recognize individual responsibility for crimes committed against international law. It further recognized that such responsibility could not be limited to individuals of a certain rank or position. Thus, the Allies were able to accuse the former German emperor, William II of Hohenzollern, of having committed a supreme offense against international morality and the sanctity of treaties.

Germany, which had previously passed a national law to implement Articles 228 and 229, passed new legislation in order to prosecute German suspects before its own Supreme Court (the Reichsgericht), which convened at Leipzig. The German Prosecutor General had the authority to decide which cases would be brought to trial. In fact, only twelve Germans were prosecuted before the German Supreme Court for war crimes. These so-called Leipzig Trials were widely criticized as a failure because the German authorities appeared to lack the will to seriously prosecute their war criminals. Moreover, the government failed to hand over 900 persons whom the Allies wanted to prosecute. Emperor William II found refuge in the Netherlands and was never extradited. In addition to these obvious shortcomings, however, the Leipzig prosecutions lacked impartiality and objectivity because they only dealt with the crimes of the vanquished. Further, the impact of the prosecutions and of the Versailles Treaty in general on internal German policy was counterproductive because it prepared the ground for a revanchist interpretation of the German capitulation (the famous "Dolchstoßlegende") and the rise of the Nazi movement.

Turkey entered World War I on December 2, 1914. In April 1915 the organized homicide of 600 intellectuals, doctors, priests, and lawyers in Constantinople was the beginning of the Armenian genocide. The atrocities committed led to a joint declaration by France, Great Britain, and Russia on May 24, 1915, asserting that all members of the Ottoman Government and those of its agents found to be involved in those massacres would be held personally responsible for the crimes. The British High Commissioner suggested that the appropriate punishment for the Armenian massacre would be to split up the Turkish Empire and prosecute its high officials. Although the newly installed Turkish authorities arrested and detained a couple of the previous leaders, many were later released in response to public demonstrations and other internal pressure. Attempts by Turkish jurists to prosecute the crimes before the national courts were slightly more successful. Several ministers of the wartime cabinet and leaders of the Ittihad party were found guilty of "the organization and execution of crime of massacre."

The Treaty of Sèvres, signed on August 10, 1920, was in many aspects similar to the Treaty of Versailles. It differed, however, in that it specified a list of offenses, which later were considered as crimes against humanity. However, the Treaty of Sèvres never took effect. It was replaced by the Treaty of Lausanne of July 24, 1923, which included a declaration of amnesty for all offenses committed by the Turkish government and its agents between August 1, 1914, and November 20, 1922.

World War II: Nuremberg and Tokyo Trials

The first series of trials following World War II took place in Nuremberg under the terms of a charter drafted in London between June and August 1945 by representatives of the United States, the United Kingdom, the USSR, and France. The Nuremberg Charter contained three categories of offenses: crimes against peace, war crimes, and crimes against humanity. Article 7 of the Charter excluded defenses based on official position (i.e., no head-of-state immunity), and Article 8 disallowed defenses claiming non-responsibility because the crimes were committed on orders from a superior.

The Tokyo Trials were based on the Charter for the Far East (the Tokyo Charter), which was proclaimed on January 19, 1946, by the Supreme Commander of the Allied Powers, General Douglas MacArthur. This charter, unlike the London Charter that instigated the Nuremberg Trials, was not part of a treaty or an agreement among the Allies. Representatives of the allied nations that had been involved in the struggle in Asia (the United States, Great Britain, France, the Soviet Union, Australia, Canada, China, the Netherlands, New Zealand, India, and the Philippines) formed the Far Eastern Commission (FEC), whose main tasks were to establish a policy of occupation for Japan and to coordinate the Allied policies in the Far East. Part of this policy was the prosecution of the major war criminals. Thus, the International Military Tribunal for the Far East (IMTFE) was created. It was composed of judges, prosecutors, and other staff from the allied nations. It was to prosecute crimes against peace, as defined in the London Charter; conventional war crimes understood as violations of the laws or customs of war; and crimes against humanity. The definition of crimes against humanity differed from that provided in the IMT charter in two ways: First, the IMTFE charter expanded the list of crimes to include imprisonment, torture, and rape. Second, it eliminated the requirement that crimes against humanity had to be committed before or during war to be actionable in court. As with the IMT charter, the IMTFE also excluded defenses based on official position or superior orders.

The prosecution selected twenty-eight defendants, among them former premiers (Hiranuma, Hirota, Koiso, and Tojo), foreign ministers (Matsuoka, Shigemitsu, and Togo), and one colonel (Hashimoto). Sixteen of the convicted persons were sentenced to life imprisonment, seven were sentenced to death, one was sentenced to seven years imprisonment, and another to twenty years in prison. All of those sentenced to hanging were convicted of one or both of the major counts of war crimes in the indictment, namely the ordering, authorizing, or permitting of atrocities, or disregard of duty to secure observance and prevent breaches of the law of war. Five defendants were convicted for a crime against humanity: Dohihara, Kimura, Muto, Itagaki and Tojo.

Post-Nuremberg World War II Trials

The Nuremberg and Tokyo trials were followed by a second series of prosecutions of Nazi leaders, pursuant to Control Council Law No. 10 (CCL10). This law formed the basis for Allied prosecutions in their respective zones of occupation. The most famous proceedings were the twelve that were held before the U.S. court in Nuremberg. One of these was the so-called Doctors Trial, in which twenty-three persons were accused of taking part in the Nazi euthanasia program (U.S. v. Brandt et al.). Also important were the proceedings against Generalfeldmarschall Milch (U.S. v. Milch) and the trial of the Ministry of Justice officials (U.S. v. Altstoetter et al.). The remaining nine proceedings conducted by the United States included one against high SS officials (U.S. v. Pohl et al.); the proceeding against Friedrich Flick and five of his employees (U.S. v. Flick et al.); the proceeding against twenty-three heads of the IG-Farben-Industrie-AG (U.S. v. Krauch et al.); the Balkan Generals Trial (U.S. v. List et al.); the "Resettlement or Genocidium Trial" (U.S. v. Greifelt et al.); the "Einsatzgruppen Trial" (U.S. v. Ohlendorf et al.) against twenty-four heads of the task-forces of the Sicherheitspolizei (security police) and the Sicherheitsdienst (security service); the proceeding against Alfred Krupp von Bohlen and twenty-four heads of the Kruppcompany (U.S. v. Krupp et al.); the "Wilhelmstraßen-Trial" against twenty-one ministers, permanent secretaries, gauleiters, high-ranked SS leaders, and other leading persons (U.S. v. von Weizäcker et al.) and the trial against fourteen high-ranking officers of the German armed forces (U.S. v. von Leeb et al.).

Other important cases have been documented by the UN War Crimes Commission (UNWCC). It was established on October 20, 1943, and its task was to investigate war crimes, collect evidence, and identify the responsible parties, and to inform the allied governments about the cases where a sufficient basis for prosecutions existed. In total, the UNWCC has documented eighty-nine war crimes trials. The documentation was published in fifteen volumes from 1947 to 1949, under the title Law Reports of Trials of War Criminals. However, there are only very few judgments dealing with crimes against humanity.

Apart from these rather well documented cases, there have been other national prosecutions in the immediate aftermath of World War II, either in the occupation zones or in the territory of the allied countries. There is no complete documentation of these cases. Sometimes this lack of documentation was intentional, to avoid subsequent investigations into the fairness of these proceedings. The proceedings instituted by the occupation powers ended a few years after the end of the war. Step by step, the responsibility for the prosecutions was passed along to German courts, despite the negative experience of the Leipzig trials. However, the legal basis of these proceedings soon changed. During the brief existence of the Supreme Court for the British Zone, which functioned from February 9, 1948, to September 30, 1950, the court applied the CCL10 in half of all its cases. Its successor, the renamed German Supreme Court, successfully refused to apply this disliked law by neglecting all unresolved cases until August 1951, when the CCL10 practically ceased to exist (it was formally abolished on May 30, 1956, with the formal ending of the German occupation). The newly autonomous German criminal justice system did not apply the Nuremberg law, but instead imposed the ordinary penal code. This situation was only remedied with the enactment of the German Code of International Criminal Law on June 26, 2002.

Prosecutions of Nazi war criminals still continued within and outside Germany for years after the end of the war. One case is famous as much for its reliance on the concept of universal jurisdiction as for the crimes of its defendant. This was the trial of Adolf Eichmann. Eichmann had been the head of Section IV B 4 of the Reichssicherheitshauptamt, an office that resulted from the merger of the security service of the Nazi party and of the security police of the Nazi state. Eichmann organized and coordinated the deportations of Jews to the concentration camps. In 1960 it was discovered that he was living in Argentina. The Israeli secret service, the Mossad, abducted him and brought him to Israel to stand trial for charges under the Nazis and Nazi Collaborators (Punishment) Law. On December 12, 1961, he was found responsible for the implementation of the so-called Final Solution of the Jewish question, an act that fulfilled the requirements of genocide and crimes against humanity. Eichmann was sentenced to death by the District Court of Jerusalem on December 15 of the same year. The special importance of the Eichmann trial lies in the fact that the state of Israel did not exist at the time that he committed the crimes for which he was found guilty. Thus, Israel's jurisdiction could not be based on the right of a conquering nation to administer punishment.

Another noteworthy trial of the years following World War II is that of Klaus Barbie, which was prosecuted in France. Barbie was head of the Gestapo in Lyon during Germany's occupation of France. The French authorities issued an arrest warrant at the end of the war. Barbie was soon arrested, but he subsequently escaped and then disappeared. He was tried in absentia for war crimes and sentenced to death by the Tribunal Permanent des Forces Armées de Lyons. Barbie was found to have taken refugee in Bolivia, and after a long and complicated procedure involving diplomatic pressure was extradited to France in 1983. Meanwhile, new proceedings relating to crimes against humanity had been instituted against him in Lyons in February 1982. He was sentenced to life imprisonment on July 4, 1987. Other cases dealing with the war crimes of Germany during World War II include that of Paul Touvier in France, who was sentenced to life imprisonment on April 20, 1994, by a Crown Court in Versailles; and that of Imre Finta, who was tried in Canada and finally acquitted by the Supreme Court on March 24, 1994.

Modern Trials on the Basis of International Criminal Law

The long and stable period of peace that followed World War II was broken in 1991 by massive violations of international humanitarian law and human rights in the territory of the former Yugoslavia. In reaction to this situation, the UN established the Commission of Experts Pursuant to Security Council Resolution 780. This commission was charged to report on the situation in the former Yugoslavia, and, on the basis of its first interim report, the UN Security Council decided to establish the ad hoc International Criminal Tribunal for the Former Yugoslavia (ICTY) on May 25, 1993.

According to Articles 2 through 5 of the ICTY Statute, the tribunal exercises jurisdiction over grave breaches of the four Geneva Conventions, violations of the laws or customs of war, genocide, and crimes against humanity. The underlying offenses of crimes against humanity include murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions on political, racial and religious grounds, and other inhumane acts.

Another ad hoc tribunal was formed some three years later. This was the International Criminal Tribunal for Rwanda (ICTR), established by UN Security Council Resolution 955 in July 1994. Its establishment was also preceded and initiated by a report filed by a commission of experts, much as was the ICTY. The ICTR also exercises jurisdiction over genocide, crimes against humanity, and crimes committed in the course of internal armed conflict.

The creation of ad hoc tribunals by the UN Security Council is not the only way to deliver international criminal justice. As a result of the growing international tendency toward accountability for international crimes, a permanent International Criminal Court (ICC) was established in Rome in 1998, to which nearly one hundred states have signed on as member parties. The first investigations for genocide and crimes against humanity, both codified in the Rome Statute, were begun in the early years of the twenty-first century. Further, new approaches in the conduct of international criminal justice have emerged, either within the framework of a UN Transitional Administration (e.g., in Kosovo and East Timor), or on the basis of bilateral agreements between the UN and a host state (as has occurred in Sierra Leone and Cambodia). In all these cases, prosecutions for genocide and crimes against humanity have taken or will take place. Interestingly enough, the respective court statutes and regulations are essentially based on the Rome Statute of the ICC, and they copy the provisions contained therein on genocide and crimes against humanity. Even the statute of the Iraqi Special Tribunal, established by the Coalition Provisional Authority in 2004, relies on the ICC statute, although the U.S. administration of the time was fiercely opposed to the ICC.

Modern Trials on the Basis of National Law

The international trend towards accountability has been accompanied by a significant number of prosecutions of genocide and crimes against humanity on the national level. Domestic judicial systems have increasingly recognized that these crimes do not belong to the jurisdiction of the territorial states, but rather that they affect the security and well being of mankind as a whole. Thus, national prosecutions are initiated for extraterritorial crimes on the basis of the principle of universal jurisdiction, or other principles that provide for extraterritorial jurisdiction. Austria, for example, has investigated and prosecuted the case of the Serbian Cvetkovic, who was charged with genocide. The ICTY refused to take over the proceedings, so Austria based its jurisdiction on Section 65(1) of the Austrian Criminal Code, which entitled Austria to punish offenses committed abroad if the offender was found within the country's borders and is not extradited to a foreign state.

Belgium has been involved in four cases invoking universal jurisdiction: One, the trial of a Rwandan named Higaniro, ended with a conviction for genocide. In another case, Aguilar Diaz et al. v Pinochet, the question arose whether the notion of crimes against humanity, as defined by international law, was directly applicable in Belgium's domestic law. The examining magistrate held that it did, and the Belgium government requested Pinochet's extradition from Great Britain in order to force him to stand trial. (The request was never granted, because Pinochet was released from prison for medical reasons and returned to Chile). A third important Belgian case of universal jurisdiction is Abbas Hijazi et al. v. Sharon et al. This case against Sharon was dismissed on February 12, 2002, after the Court of Cassation held him to be immune from prosecution under international law. However, the court allowed the proceedings against Sharon's co-defendants to go forward, even in absentia. Under pressure from the U.S. government, the Belgian government agreed to stop prosecuting international crimes that relied on universal jurisdiction, and in August 2003 the parliament approved an amendment requiring all plaintiffs to be Belgian nationals. As a result, the cases of Sharon's codefendants were also dismissed.

In the French case of Javor et al. v. X, the defendant was accused of genocide and crimes against humanity committed in a Serbian detention camp in the former Yugoslavia in 1993. However, because these offenses did not exist in the French Penal Code prior to 1994, it was held that the prosecution could not go forward. In Switzerland, a Rwandan citizen named Niyonteze was charged with genocide and crimes against humanity, and the German courts rendered five judgments concerning war crimes and genocide committed in the former Yugoslavia: The first judgment was rendered by one of the superior appeals courts of the State of Nordrhine-Westphalia, on December 26, 1997. The accused, N. Jorgic, was sentenced to life imprisonment for eleven counts of genocide, thirty counts of murder, fifty counts of severe physical injuries, and 355 counts of detaining persons against their will. The judgment was confirmed on March 30, 1999, and by the Constitutional Court on December, 12, 2000. Another Serbian offender, N. Djajic, was convicted for aiding and abetting fourteen war crimes of murder on May 23, 1997, by the highest court in Bavaria, Germany. He was sentenced to five years in prison. A further defendant, M. Sokolovic, was sentenced on November 29, 1999, to nine years of imprisonment for aiding and abetting genocide and for committing war crimes. Finally, D. Kuslic was convicted for genocide and murder on December 15, 1999, and sentenced to life imprisonment. The basic legal findings of both these judgments were confirmed on February, 21, 2001.

Other cases have concerned gross human rights violations, among them the forced disappearance of persons, during the military dictatorships in Argentina, Chile, and Guatemala. In July 1996, the Progressive Union of Prosecutors in Spain lodged a criminal complaint against General Augusto Pinochet and other members of the Chilean military junta. The complaint included the offense of genocide. The examining magistrate in that case, Baltasar Garzón, considered himself competent to investigate charges of genocide, terrorism, and torture regardless of the nationality of the victims, although in this case the victims included Spanish citizens. He issued a warrant of arrest for General Pinochet. During a private visit to London, Pinochet was detained by the British authorities pursuant to the Spanish request. The competent Spanish court first confirmed the Spanish jurisdiction on November 5, 1998, dismissing an appeal that challenged its jurisdiction. In a second decision, the court extended the terms of the arrest warrant for Pinochet, which now included seventy-two charges against the general. Pinochet was never extradited, however, and instead was sent back to Chile.

In another case, initiated by Nobel laureate Rigoberta Menchú Tum in 1999 against the former Guatemalan military junta headed by Ríos Montt, Spain's highest court concluded that Spain could not exercise jurisdiction, and affirmed that the jurisdiction of the territorial state (Guatemala) would prevail. Another case, this time against the Argentine naval officers Adolfo Scilinogo and Miguel Angel Cavallo, was still ongoing in 2004. Both of the accused face charges for their complicity in crimes committed during Argentina's military dictatorship, including crimes against humanity. Last but not least, the Nuremberg judicial authorities have undertaken thorough investigations into the murder of two German students—Klaus Zieschank and Elisabeth Käsemann—who were killed in Argentina during the 1970s. The court has issued arrest warrants against high-ranking members of the former Argentinean junta, among them former Generals Jorge Videla and Emilio Massera. The German authorities demanded the extradition of Videla in March 2004.

Domestic courts of the states of the former Yugoslavia have slowly started prosecuting war crimes. Thus, for example, on June 25, 1997, the Osijek District Court in Croatia convicted a Serbian for genocide, charging that he had participated in acts of ethnic cleansing in the village of Branjina during the war. In Bosnia and Herzegovina, war crimes trials have been paralyzed for years, either because the judicial authorities were reluctant to pick up these controversial cases or because of confusion over jurisdiction since the adoption of the new Bosnia and Herzegovina Criminal Code.

Specific Legal Issues

One of the major achievements of modern international criminal law is the evolution of increasingly exact definitions of international crimes. Articles 6 through 8 of the Rome Statute offer an explicit codification of genocide, crimes against humanity, and war crimes. The definitions may not yet be perfect, but they are a considerable improvement over the definitions upon which the Nuremberg, Tokyo, and The Hague trials were formerly based.

Genocide, for instance, was not understood as a separate crime in the Nuremberg trials, although some defendants were charged with "deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people, and national, racial, or religious groups, particularly Jews, Poles and Gypsies." Although the final judgment of the Nuremberg tribunal never used the term explicitly, it described at great length what would later be defined as genocide in the Genocide Convention of 1946. The U.S. Military Tribunals sitting at Nuremberg thus demonstrated the emerging acceptance of the concept. In fact, the indictment and judgment for the Einsatzgruppen trial used the word genocide to characterize the activities of the German troops in Poland and the Soviet Union.

The problem with the concept of genocide is that, even though the overt act—the commission of mass killings—is more or less clear, there is a mental requirement that must also exist to qualify the charge of genocide. In other words, the killing or other overt act must be committed in order "to destroy, in whole or in part" a protected group. This entails at least three major problems. First, it turns the offense into a special-intent crime, which necessitates an understanding of the subjective state of the defendant. Second, it is very difficult to prove the specific genocidal intent. For this reason, the Bavarian Supreme Court acquitted Novislav Djajic of charges that he had aided and abetted the commission genocide, because it could not be proven beyond a reasonable doubt that Djajic knew of the main perpetrators' special intent to destroy the group of the Bosnian Muslims who were his victims, nor could it be shown that he himself had such an intent. Finally, it is unclear whether the specific genocidal intent is required of any participant in a genocide, or if it need only be proven for a certain category or group of participants. A perpetrator, whether he or she acted alone and directly, was one of several coperpetrators, or participated only indirectly, must always act with specific intent. This also applies to the superior who is responsible for ordering the genocidal act. Minor contributors, especially the mere accomplice who lends physical or psychological assistance (an aider and abettor), need not have acted with specific intent, but need only be aware of the genocidal intent of the main participants in order to bear some criminal responsibility for the act.

The definition of crimes against humanity developed from the older concept of war crimes. The term "crimes against the laws of humanity" was first mentioned in the Paris Peace Treaties, which drew on the so-called Martens Clause contained in the Preamble of the 1907 Hague Convention. The underlying rationale for the 1907 convention was the maintenance of basic principles of the law of nations and the establishment of basic rules of humanity, even in armed conflict and in the absence of other specific rules. The Nuremberg tribunal employed the term without providing a clear theoretical and methodological basis of the concept. To avoid a blatant violation of the principle of legality, which holds that a thing cannot be a crime in the absence of a law that makes it one, the Allies interpreted crimes against humanity as a jurisdictional extension of war crimes. While the prohibition of war crimes was intended to protect civilians during armed conflict between states, the concept of "crimes against humanity" extended this protection to civilians within a particular state, provided that there was a link to armed conflict. Thus, such crimes, if they were committed before 1939, that is, before the Nazi aggression, could not be prosecuted.

SEE ALSO Arbour, Louise; Eichmann Trials; International Criminal Court; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia

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Kai Ambos

pros·e·cu·tion / ˌpräsiˈkyoōshən/ • n. 1. the institution and conducting of legal proceedings against someone in respect of a criminal charge: Olesky faces prosecution on charges he spied for Russian intelligence | they lacked the funds to embark on private prosecutions. ∎  (the prosecution) [treated as sing. or pl.] the party instituting or conducting legal proceedings against someone in a lawsuit: the main witness for the prosecution.2. the continuation of a course of action with a view to its completion: the network's prosecution of its commercial ends.