War Crimes

WAR CRIMES are violations of the rules of war. These rules, which limit the type and extent of violence permissible in war, are partly laid down in written treaties (laws) and partly consist of unwritten customs.

There are at least four compelling reasons for the existence of rules of war. First, every belligerent has a selfish interest not to provoke reprisals from the enemy, and not to provoke neutrals to join the enemy. Second, wars, however bitter, are to usher in a new era of peace. Hence, reconciliation should not be made too difficult: yesterday's enemy may be needed as a friend tomorrow. Third, nations do not wish their armed forces to "get out of hand; for, as history has also shown, they may otherwise easily turn against their own government and conationals. Last, but not least, war has always been decried, for humanitarian and many other reasons; if wars cannot be prevented their cruelty and destructiveness must at least be limited, for the purpose of sheer self-preservation. For all of these reasons, the law of war is the oldest and one of the most important parts of international law. Especially since the Middle Ages, the rules of war--as well as the conditions under which it is lawful to start a war--have greatly occupied the attention of governments, jurists, and, indeed, military men.

Rules of War

The rules of war fall into several categories:Rules concerning the status of combatants. These determine whether or not a person has the right to engage in combat and other military activities. For example, professional and conscripted soldiers may kill enemy soldiers in battle, but neither an individual civilian nor a soldier disguised as a civilian may do so. Rules concerning the conduct of hostilities. These circumscribe the type and extent of damage and suffering that may be inflicted upon the people and territory of the enemy, the treatment of prisoners of war, and the like. Rules dealing with the behavior of the occupying power in occupied enemy territory. The longer a wartime occupation lasts (for example, in the war which ended in 1945, Japan occupied large parts of China for over a decade), the more important are these rules. Rules pertaining to such important matters as the rights and duties of the belligerents and their citizens toward neutral nations and their citizens, and to the behavior of the parties under a truce and during an armistice.

Offenses against any of these rules, whether established by treaties or by international custom, constitute war crimes.

Historical Developments

At different periods of history, the laws and customs of war varied greatly; and for long stretches of time, and in many regions of the world, practices were considered acceptable which at other times were regarded as utterly repugnant and not permissible. Nor did this evolution constitute a continuous process of amelioration. For some periods of time, or in some parts of the world, usages would improve, only to relapse again into barbarity. For example, the periods of the Crusades and, again, of the Thirty Years' War (1618-1648) were marked by a cruelty of military customs which had been overcome in previous periods and elsewhere.

Surveying the history of warfare, we find that often it was considered permissible to plunder or even physically to destroy a conquered city, and to slay the inhabitants, irrespective of sex and age. At other times, at least certain places--such as places of worship--had to be spared, and/or persons who had found rescue there, and/or women and children. For example, the Old Testament (Deuteronomy 20:19, 20) forbids the destruction of fruit-bearing trees in enemy territory. The Greeks of the heroic age had very cruel usages of war; thus, indignities were inflicted even on the corpse of a fallen enemy leader--as shown in the description, by Homer, of the treatment of Hector's body by Achilles. On the other hand, quarter was given during the Trojan wars even during battle, if ransom was offered. And the ancient code of Manu, the legendary legislator of India, ordered long before the Trojan wars that an enemy must not be harmed if he is asleep, or naked, or turning to flight, or defenseless, or folding his hands to ask for mercy. But at diverse periods of history, captured enemy soldiers were slain, or at least it was permitted to slay them.

A relative improvement in the law of war was the gradually developed custom not to slay prisoners but to make them into slaves (agricultural workers, household servants, and the like) or to exchange them for one's own soldiers who had fallen into captivity of the other side. Yet, for example, Hemocratus, a general in the service of Syracuse (on the island of Sicily), was condemned to exile by his government for having ordered his troops to treat the invading Athenian armies with moderation; while Julius Caesar was not reprimanded for having sold, rather than killed, 33,000 Belgian prisoners during his second campaign in Gaul.

Under the law permitting the enslavement of conquered people, the Hebrews were taken in servitude to Egypt. The custom of selling enemy prisoners at slave auction developed into the custom of allowing the payment of ransom for their liberty. There are examples of freeing captives without ransom; while, on the other hand, in the 16th and 17th centuries it was again considered permissible to make slaves of prisoners.

Religious views greatly influenced the rules of war. When the outcome of war was regarded to be the judgment of heaven, or the vanquished were regarded as being abandoned by the gods, such doctrines were used as justification for the cruel treatment of the defeated. On the other hand, the Stoics (for example, Marcus Tullius Cicero, 106-43 bc) taught that the vanquished must be spared; and according to the law as it existed at certain times in antiquity, generals who had received the surrender of towns or even nations actually became their patrons.

At some periods, more lenient rules applied in wars between " equals (for example, conflicts between Christian princes or between Muslims) than in wars against "outsiders or "infidels (for example, between Christians and Muslims). Thus, in 1179, Pope Alexander III requested that enslaving be limited to non-Christians.

Very important to the development of international law was the fact that, however brutal the rules of war may have been, the violations of such limitations as did exist were considered as grievous wrongs; and in times of deep religious convictions punishments of a religious nature were threatened as the most powerful deterrent available. Thus, during the 11th century, church councils proclaimed the so-called "Truce of God, forbidding warfare on certain days and the harming during hostilities of certain categories of persons, especially priests, women, pilgrims, and merchants (and also sometimes of beasts of burden), under penalty of excommunication. Similarly, in wars between peoples of different religions, "treachery--the violation of a treaty-created or customarily sacrosanct rule, such as the molestation of heralds of truce, or the breach of a promise of free conduct--would be "punished by severest reprisals.

The first war crimes trial in history in the technical sense of the term (that is, punishment of transgression of the law of war through judicial procedure) appears to have been the trial by an English court in 1305 of the celebrated Sir William Wallace, for waging a war of extermination against the English population, "sparing neither age nor sex, monk nor nun. Since the latter part of the Middle Ages, customs and practices have evolved which eventually led to the modern law of war; and, in the words of a leading British jurist, Lord Wright of Durley (Robert Alderson Wright), chairman of the United Nations War Crimes Commission, "there have been hundreds of cases in which national military tribunals have tried and convicted enemy nationals of breaches of the laws of war. To illustrate, during the Franco-Prussian War of 1870-1871, the Germans executed numerous French francs-tireurs (irregular combatants) for violations of the laws of war.

The teachings of jurists and philosophers of the 17th and 18th centuries did much to humanize the conduct of belligerents. For example, Montesquieu (1689-1755) held that to murder prisoners of war is contrary to all law, and Jean Jacques Rousseau (1712-1778) added that they must not be held in dungeons or prisons, or put in iron, but should be placed in healthy conditions and liberated after the end of the war. Rules to such effect were agreed upon in the Treaty of Commerce and Friendship between the United States and Prussia, signed by Benjamin Franklin and King Frederick the Great.

Geneva and The Hague

Decisive progress in the evolution of the laws of war was made after the 1860's partly under the impact of the horrors of the Crimean War and the American Civil War, through international treaties concluded between states. The Geneva Conventions of 1864 and 1906, for example, were to ameliorate the conditions of wounded soldiers in the field. The most important among the treaties adopted prior to World War I were the various conventions and regulations approved at international conferences held at The Hague in 1899 and 1907, and especially the "Convention respecting the Laws and Customs of War on Land and the "Regulations of the same name, annexed to the convention of 1907. The rules and principles laid down therein constitute the most ambitious effort so far to "define with greater precision the rules and customs of war on land.

Although subsequently further refined by various international conventions--for example, the Geneva Prisoner of War Convention of 1929 and the Geneva conventions of 1949--the Hague Regulations of 1907 (as they are called for short) have continued to form the core of the law of war of the 20th century. They have been so generally accepted by the community of nations that, as numerous tribunals have stated, they are binding upon all states and all individuals, which means that their violation constitutes war crimes.

Some of the provisions of the 1907 regulations, cited here at random, may indicate their range and significance: "Volunteer corps (now often known as organized partisans or guerrillas), if fulfilling specific conditions laid down in the regulations, have the same rights and duties as have armies. Prisoners of war must be humanely treated. For example, their board, lodging, and clothing must be "on the same footing as furnished to the troops who captured them. "It is especially forbidden to employ poison or poisoned weapons or "to kill or wound an enemy who has surrendered or "to declare that no quarter will be given."The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited."Escaped prisoners who are retaken before being able to rejoin their own army are liable only to disciplinary punishment. Prisoners who, after succeeding in escaping, are again taken prisoner, are not liable to any punishment on account of the previous flight. In belligerently occupied territory, " family honor and rights, the lives of persons, and private property, as well as religious convictions and practices, must be respected. Private property cannot be confiscated. Pillage is formally forbidden. No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible."The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property --that is, must be "respected and cannot be confiscated by the occupant.

Basic Principles Regarding War Crimes

Since the rules of war are part of international law, no nation can one-sidedly change them. No legislature or government or general can decree that something which is a war crime is permitted to their own forces. In 1842, Daniel Webster, United States secretary of state, declared: "The law of war forbids the wounding, killing, impressing into the troops of the country, or enslaving or otherwise maltreating the prisoners of war unless they have been guilty of some grave crime, and from the obligations of this law no civilized state can discharge itself. War crimes can be punished, not only by the organs of the country of which the offender is a citizen--for example, a guard who tortures, or a camp commander who orders the torturing of, prisoners of war will in a civilized country be court-martialed by his own authorities--but also by the enemy. The right of the enemy to try a war crime suspect has been uncontested throughout the centuries. In fact, since the rules of war are international law, such enemy suspects may be tried, and, if found guilty, punished even by a nation which has not passed any legislation for such procedures. Hence, Gen. George Washington acted correctly when in 1780, during the American Revolutionary War, he had Maj. John Andre tried by a Board of General Officers, and Andre was correctly convicted by them as a spy "under the laws of war (that is, under the then existing international rules of war) even though no American legislature had by 1780 stipulated the criminality of Andre's behavior. The matter was lucidly stated by United States Attorney General James Speed in 1865 in connection with the trial of President Abraham Lincoln's assassins: "The laws of war exist and are of binding force upon the departments and citizens of the government though not defined by any law of Congress . When war comes, the laws and customs of war come also, and during the war are part of the law of the land. Similarly, the United States Supreme Court stated shortly after the Civil War (in Dew v. Johnson): "What is the law which governs an army invading an enemy's country? It is not the civil law of the invaded country; it is not the civil law of the conquering country; it is the law of war. War crimes are very serious offenses. In the words of the United States basic field manual: "All war crimes are subject to the death penalty, although a lesser penalty may be imposed. Not only military personnel are bound by the law of war. Hence, any civilian may become guilty of a war crime--for example, a physician who subjects an enemy citizen to inhuman "medical experiments, or a businessman participating in the plunder of enemy property. Even in the heat of war, persons suspected of war crimes may not be punished without their guilt being properly established. To shoot them out of hand constitutes itself a war crime. International law does not lay down the procedure to be followed. Summary procedure may suffice, if it affords the accused the minimum guarantees of a fair trial according to the general principles of law as recognized by civilized nations. In a wider sense, the term "war crimes covers two other types of behavior violating international law, namely "crimes against peace and "crimes against humanity.

Crimes Against Peace

These consist in planning, preparing, initiating, or waging of war of aggression. After WORLD WAR II, the International Military Tribunal at Nurnberg (composed of one each American, British, French, and Russian judge) tried top leaders of Adolf HITLER's Germany, and the International Military Tribunal for the Far East, at Tokyo (composed of one judge each from Australia, Canada, pre-Communist China, France, Great Britain, India, the Netherlands, New Zealand, the Philippines, the USSR, and the United States), tried top leaders of Japan. Both tribunals stated in their judgments that to unleash a war of aggression "is not only an international crime; it is the supreme international crime. But both tribunals emphasized that only persons actually formulating or influencing governmental policy can be charged with "crimes against peace. For example, the Tokyo judgment declared that "the duty of an army is to be loyal. Hence, neither privates nor generals of an aggressor nation can be blamed if they "merely performed their military duty of fighting a war waged by their government, as long as they did not personally participate in the making of the policy of aggression.

The concept that aggression is a crime is intimately connected with the distinction between "just and "unjust war. "Unjust war means, in essence, aggressive war, and includes especially aggression made in violation of a solemn pledge (treaty) not to attack. The distinction between just and unjust war goes back for more than 2,000 years. It has been insisted upon, for example, by Roman statesmen and jurists in antiquity; by the two most influential "doctors of the Catholic Church, St. Augustine in the 5th century and St. Thomas Aquinas in the 13th century; by the father of the modern law of nations, Hugo Grotius (1583-1645), and other famous Dutch jurists; and by Spanish scholastics and French and German thinkers of the age of enlightenment. Approximate precedents for the proposition that "crimes against peace are punishable also exist. Thus, the Senate of Rome requested the extradition for trial of Hannibal for inciting nations to make war upon Rome, and of Brutulus Papius of Samnium for attacking Rome in breach of treaty. (Both committed suicide.) In 1474, Sir Peter of Hagenbach, governor of Breisach, was tried by a court composed of Austrian and Swiss judges and executed for having waged a terroristic war.

During the period of absolutism in Europe, the distinction between just and unjust war fell into oblivion. But when in 1815, Napoleon Bonaparte, violating his pledge, escaped from Elba to France and rekindled the war, the Great Powers of Europe declared him an outlaw "as an enemy and disturber of the tranquility of the world who has incurred public vengeance. Thereafter, Britain, with the consent of the other Great Powers, punished him by banishing him to the grim island of St. Helena.

Under the Versailles Treaty (1919), the German emperor William II was to be tried by an international tribunal " for a supreme offence against international morality and the sanctity of treaties (especially including the violation of the German-guaranteed neutrality of Belgium and Luxembourg). But the Netherlands, where William had fled, refused to extradite him, and the trial never took place.

During the interwar period, several international pronouncements condemned wars of aggression as illegal and criminal. Thus, in February 1928, the sixth Pan American Conference of 21 American republics resolved that " war of aggression constitutes an international crime against the human species all aggression is illicit. The Nurnberg and Tokyo international tribunals attached special importance to the "General Treaty for the Renunciation of War (Kellogg-Briand Pact) of Aug. 27, 1928, because it was ratified before World War II by virtually all countries of the world. The pact does not specify that aggression is criminal, but the Nurnberg international tribunal declared: "The solemn renunciation of war as an instrument of national policy pledged in the Kellogg-Briand Pact involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing. This, as well as all other principles enunciated by the Nurnberg international tribunal, received added weight by the fact that the General Assembly of the United Nations, by a unanimous resolution of Dec. 11, 1946, identified itself with these principles, as did subsequently the 11-nation Tokyo tribunal.

It should be noted, however, that after World War II only 36 leaders (12 German and 24 Japanese), out of the many thousands of war crime suspects tried, were convicted for "crimes against peace.

Crimes Against Humanity

These are outrages (murder, extermination, deportation, torture, and other mass atrocities) and persecutions of entire racial, religious, and political groups. If the victims are enemy citizens, such deeds constitute "war crimes in the narrow sense of the term. But if the victims were, for example, German nationals, such deeds were considered punishable under international law (that is, also by non-German courts), provided they were committed in connection with "crimes against peace, or "war crimes. The Nurnberg international tribunal interpreted these crimes cautiously. Its judgment states that "revolting and horrible as was "the policy of persecution, repression and murder of civilians in Germany before the war of 1939, the tribunal was not competent to deal with them. It did, however, find certain defendants guilty of atrocities, irrespective of the nationality of the victims, because they were committed "in execution of or in connection with the aggressive war. In other words, when, for example, mentally or physically deficient persons were systematically exterminated as "useless eaters in occupied territories as well as in Germany, or when German Jews and gypsies were transported to concentration and extermination camps just as were foreign Jews and gypsies pursuant to the Nazi master race theory, all this was part and parcel of a criminal war policy. Other war crimes tribunals which had to deal with indictments for "crimes against humanity followed the interpretation of the Nurnberg international tribunal.

It will be noted, therefore, that the post-World War II war crimes trials left open the question as to whether mass atrocities committed by or with the complicity of a government in peacetime against entire groups of its own population constitute international crimes; that is, whether the culprits can be brought to justice before an outside court.

War Crimes Trials After World War I

The practices of "terror, in violation of the laws of war, which Germany used in World War I led to an insistent demand to punish the individuals responsible for them. The Versailles Treaty provided that Germany should hand over to the Allies the persons wanted for trial. But when in February 1920 the first such list of some 900 names--including the former imperial crown prince, Field Marshal Paul von Hindenburg, and Gen. Erich F. W. Ludendorff--was presented, German indignation was so strong that the Allies agreed to a compromise, namely, that investigations and trials would be handled by the German Supreme Court. The outcome was a farce. Of the 901 persons grievously incriminated by evidence furnished by the Allies (mainly Great Britain, France, and Belgium), 888 were either acquitted or not indicted. The whole procedure gave rise to fanatical chauvinistic demonstrations, and greatly helped the early spread of nazism. The 13 who were found guilty received insignificant prison sentences but were celebrated inside and outside the court as national heroes.

<War Crimes Trials in Connection with World War II

The most famous trial held during the war was that staged by the Germans at Riom (France) of French statesmen for "crimes against peace. The intention was to prove that the accused, and especially Leon Blum, the former French prime minister who was of Jewish ancestry, had been involved in a Jewish plot to start a world war against Germany. But the evidence immediately pointed in the opposite direction. The trial was quickly abandoned, and the defendants put in concentration camps. The first trial of an officer of the notorious Nazi Elite Guard extermination troops was held in Kharkov, USSR, in 1943.

In view of the unparalleled mass atrocities systematically carried out by Germany from the inception of the war, numerous formal warnings were issued by the Allies during World War II that the culprits would be brought to justice. Resolve was also strong to punish Japanese atrocities committed in the far-flung Asian and Pacific theaters of war. In 1943, a "United Nations Commission for the Investigation of War Crimes, composed of representatives of 17 nations, was established with its seat in London as a clearinghouse of information and evidence. In May 1944, at the request of China, the commission established a Far Eastern subcommission.

The trial before the International Military Tribunal (Nov. 20, 1945, to Oct. 1, 1946) of Hermann GOERING and 20-odd other leading personalities of the Third Reich was held at Nurnberg for symbolic reasons, Nurnberg having been the citadel of national socialism where Hitler had held his huge annual rallies. The trial was presided over by the British member of the tribunal, Lord Justice Geoffrey Lawrence. The tribunal was established and functioned pursuant to an agreement signed in London in August 1945 by representatives of the United States, Britain, France, and the USSR, and formally adhered to also by 19 other nations.

Of the 24 former leading Nazis indicted, 22 were tried, including Martin Bormann in absentia; one of the defendants committed suicide before judgment and the other was not tried for medical reasons. Death sentences were imposed on 12 defendants, 3 were given life imprisonment and 4 lesser prison sentences, and 3 were acquitted.

Thereafter, 185 other leading German personalities--cabinet ministers, field marshals and admirals, industrialists, ambassadors, jurists, physicians, and so on--were indicted before 12 tribunals, composed exclusively of United States judges, at Nurnberg between December 1946 and March 1949 under a law issued by the Allied Control Council for Germany. Four defendants committed suicide; four were severed from the proceedings for health reasons. Of the remaining 177, these United States tribunals sentenced 25 to death, 20 to life imprisonment, 97 to lesser prison terms, and acquitted 35.

The Tokyo international tribunal was established on Jan. 19, 1946, by General of the Army Douglas MacArthur, as Supreme Commander of the Allied Powers (SCAP). The substantive and procedural law applied by it was very similar to that applied by the Nurnberg international tribunal. However, there were four chief prosecutors (one each from the four powers represented on the bench) at Nurnberg, and only one chief prosecutor (an American, Joseph B. Keenan, former assistant to the United States attorney general) at Tokyo. The trial lasted (including a seven-month recess to prepare the 1,200-page judgment) from May 3, 1946, to Nov. 4, 1948. The Australian member, Chief Justice of the Supreme Court of Queensland William Flood Webb, presided. Probably the best known of the defendants was Gen. Hideki TOJO, Japan's prime minister in 1941-1944, who was hanged as a war criminal in 1948. Of the 25 defendants brought to trial, 7 were given the death sentence, 16 were sentenced to life imprisonment, and 2 to other prison terms.

Furthermore, many trials were conducted from 1945 by American, British, French, Australian, Belgian, Dutch, Polish, Norwegian, Soviet, Czechoslovak, and other courts in many parts of Europe and the Far East. The defendants were mainly citizens of former enemy countries, but numerous nationals of the respective countries also were tried as collaborators in the war crimes of the enemy. The most famous of the latter trials were probably those of Marshal Henri Philippe PETAIN and Pierre Laval--respectively head of state and prime minister of France's wartime Vichy regime--and the Norwegian Vidkun Quisling, whose name had become synonymous for fifth columnist during World War II. One reason why many trials could be held was the unique fact that huge masses of official, top-secret documents of the former Axis powers had become available.

As the decade of the 1960s opened, the war crimes trials connected with World War II were not entirely over. This was particularly true of the Federal Republic of Germany, where since the 1950s many gravely incriminated persons who had lived under assumed names were brought to trial. German authorities estimated that these trials--long since held exclusively by German courts under German law--involving several additional thousands of suspects, were to come to an end by 1963. As far as these "late trials were concerned, world attention focused on the trial in 1961, before the High Court of Israel, of Adolf Eichmann (who had lived incognito in Latin America, whence he was abducted to Israel in 1960), for having been a top figure in, and largely master mind of, the extermination of millions of Jews and others considered "inferior by the Hitler regime.

John H. E. Fried
Adjunct Professor of Political Economy
New York University
Formerly Special Legal Consultant to the United States War Crimes Tribunals in Nurnberg