War crime

A war crime is an act that violated the laws of war that applied in the jurisdiction and time of occurrence. The definition varies with time and place, and from a strict legal rather than historical perspective. That being said, there is abundant precedent for the trial and conviction of defendants in an ad hoc tribunal that enforced issues ex post facto, because the offense had not been considered prewar, but, such as genocide, met a consensus of qualifying as egregious conduct, perhaps under the doctrine of hostis humani generis or of just war theory.

Just war theory created a basis for formalizing the conduct of war, but there were earlier efforts.

limitations on the conduct of armed conflict date back at least to the Chinese warrior Sun Tzu (sixth century b.c.e.), the ancient Greeks were among the first to regard such prohibitions as law. The notion of war crimes per se appeared more fully in the Hindu Code of Manu (circa 200 b.c.e.), and eventually made its way into Roman and European law.

The first recognized trial of an individual war crime, in the West, appears to have been in Austria in 1474.

Charles the Bold, Duke of Burgundy (1433-1477), 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, on the Upper Rhine. The governor, overzealously following his master’s instructions, introduced a regime of arbitrariness, brutality and terror in order to reduce the population of Breisach to total submission. Murder, rape, illegal taxation and the wanton confiscation of private property became generalized practices... the Archduke of Austria, under whose authority von Hagenbach was captured, had ordered the trial of the bloody governor.

This may have been the first true international tribunal, as it was made not “… an ordinary tribunal, an ‘’ad hoc’’ court was set up, consisting of 28 judges of the allied coalition of States and towns.” In his defense, Hagenbach used the doctrine of compliance with superior orders, a defense rejected at the Nuremberge and Tokyo trials. He defended murder, rape, and

orders to his non-German mercenaries to kill the men in the houses where they were quartered so that the women and children would be completely at their mercy. The defence essentially played the card of compliance with superior orders, considering that “Sir Peter von Hagenbach does not recognise any other judge and master but the Duke of Burgundy”, whose orders he could not dispute. “Is it not known that soldiers owe absolute obedience to their superiors ?” This basic consideration was underlined by the fact that the Duke himself had personally confirmed and ratified ex post factum “all that had been done in his name”. Von Hagenbach requested an adjournment to ask for confirmation from the Duke, but the tribunal refused, because this request was considered contrary to the laws of God and because the defendant’s crimes had already been established beyond doubt. Therefore, the tribunal found the accused guilty, and, deprived of his rank of knight and related privileges (because he had committed crimes which he had the duty to prevent), von Hagenbach was executed following the Marshal’s order : “Let justice be done”.

In the present international environment, the most important definitions are in the Geneva Conventions. There are complex issues when dealing with national decisions, such as the doctrine of command responsibility stated in the in re Yamashita decision. International law has generally not stayed abreast of non-state actors accused of terrorism or genocide, democide, or "ethnic cleansing".

Not all those individuals accused of war crimes have come to trial. Adolf Hitler, Joseph Goebbels and Heinrich Himmler all committed suicide before any legal process, and were not tried in absentia as was Martin Bormann. Ratner summarizes this problem as

the creation of a body of law criminalizing certain violations of the laws of war does not mean that war criminals will actually be prosecuted. This remains a matter for States and, increasingly, the United Nations and other international organizations. The Geneva Conventions require all parties to search for and either extradite or try all persons suspected of having committed grave breaches. And international law gives all States the legal right to prosecute war criminals under the theory of universal jurisdiction. While States have at times prosecuted war criminals (e.g., the U.S. trial of the My Lai offenders), the more pervasive pattern, despite the obligations of the Geneva Conventions, is either mere administrative punishment or impunity.

War criminal v. war crime Individual responsibility for crimes, within formal law, is largely a 20th century development in international law, although it was recognized in the 1864 U.S. Lieber Code. The term "war criminal" was, especially in the period of late World War II and the trials between 1945 and 1948, a term of art for those for whom there was abundant evidence, often in sworn testimony, but were never formally prosecuted due to their death or, as in the case of Josef Mengele, escape. It is also common usage in works of military history, and cannot simply be erased from the literature. For example, Robert Jay Lifton referred to Mengele, in the authoritative book ‘’The Nazi Doctors’’, saying "Certainly no Nazi war criminal has evoked so much fantasy and fiction." This usage is deprecated in current international law, where there is a presumption of innocence. Nevertheless, especially in the context of World War Two and its aftermath, the term certainly was used; the single actual trial under International Military Tribunal (Nuremberg), under four-power control, was titled the "International Military Tribunal for the Trial of German Major War Criminals." Note that "alleged" or similar qualifiers were not used. Subsequently, the four major powers conducted trials under their national authorities, such as U.S. Nuremberg Military Tribunals. Not all legal codes have a presumption of innocence.

Lieber Code

One of the first, if not the first, modern set of the laws of war was the U.S. Lieber Code of April 1863. Confederate Major Henry Wirz was the only war criminal executed under the provisions of the Code.

Unlike the Geneva Convention, the Lieber Code prescribed specific punishment for violations, including death It allowed starvation of unarmed belligerents (Article 17), but generally stated ethical principles for the treatment of civilians, later to be prescribed in the Fourth Geneva Convention for civilians and the Third Geneva Convention for prisoners of war. As opposed to subsequent international treaties, over a number of years, it took the radical step of assigning individual responsibility for crimes.

There are speculations that, under the Lieber Code, that Abraham Lincoln may have committed war crimes, and the historical literature, in these speculations, uses the term “war criminal”. Again, this is a term of art of historical writing rather than a formal adjudication. Using a combination of primary and secondary sources, Burris Carnahan evaluates Lincoln’s actions in the context of the laws of war extant in 1861 rather than through a modern lens. He concludes that Lincoln’s actions generally fell within the boundaries of what was considered at the time lawful conduct measured by the somewhat malleable standard of “military necessity.” It also is a case of presentism, a common problem in historical judgments of morality.

Throughout, he shows a president walking a tightrope between employing legal principles to mitigate the impact of warfare on civilians and simultaneously avoiding concessions that would give the Confederacy “belligerent” or sovereign nation status.

1884 Geneva Conventions

The first international humanitarian law treaty, the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, was signed on August 22, 1864, slightly after the Lieber Code, and was narrower in scope. This did not use a concept of individual responsibility.

Hague Conventions

Two major groups of conventions were enacted at The Hague, in 1899 and 1907:

• Hague Conference of 1899
  • Hague I - Pacific Settlement of International Disputes : 29 July 1899
  • Hague II - Laws and Customs of War on Land : 29 July 1899
  • Hague III - Adaptation to Maritime Warfare of Principles of Geneva Convention of 1864 : July 29,1899
  • Hague IV - Prohibiting Launching of Projectiles and Explosives from Balloons : July 29, 1899
  • Declaration I - on the Launching of Projectiles and Explosives from Balloons; July 29, 1899
  • Declaration II - on the Use of Projectiles the Object of Which is the Diffusion of Asphyxiating or Deleterious Gases; July 29, 1899
  • Declaration III - on the Use of Bullets Which Expand or Flatten Easily in the Human Body; July 29, 1899
  • Final Act of the International Peace Conference; July 29, 1899
• Hague Conference of 1907
  • Hague I - Pacific Settlement of International Disputes : 18 October 1907
  • Hague II - Limitation of Employment of Force for Recovery of Contract Debts : October 18, 1907
  • Hague III - Opening of Hostilities : 18 October 1907
  • Hague IV - Laws and Customs of War on Land : 18 October 1907
  • Hague V - Rights and Duties of Neutral Powers and Persons in Case of War on Land : 18 October 1907
  • Hague VI - Status of Enemy Merchant Ships at the Outbreak of Hostilities : 18 October 1907
  • Hague VII - Conversion of Merchant Ships into War Ships : 18 October 1907
  • Hague VIII - Laying of Automatic Submarine Contact Mines : 18 October 1907
  • Hague IX - Bombardment by Naval Forces in Time of War : 18 October 1907
  • Hague X - Adaptation to Maritime War of the Principles of the Geneva Convention : 18 October 1907
  • Hague XI - Restrictions With Regard to the Exercise of the Right of Capture in Naval War : 18 October 1907
  • Hague XIII -Rights and Duties of Neutral Powers in Naval War : 18 October 1907

Most have been superseded by other conventions, but were important background to later treaties. The Hague Conventions do not deal with individual guilt.

Treaty of Versailles

While the Hague Conventions had not firmly defined individual responsibility, the postwar treaty said:

• Article 227 called for the arrest and public trial before an international tribunal of the defeated German Emperor, Kaiser Wilhelm II, for “a supreme offence against international morality and the sanctity of treaties.” and to “fix the punishment which it considers should be imposed.”
• Article 228 called for the trial “before military tribunals of persons accused of having committed acts in violation of the laws and customs of war. Such persons shall, if found guilty, be sentenced to punishments laid down by law.”

Even though the Neverlands was the birthplace. of the Hague Conventions,it “ refused to extradite the Kaiser and he was never tried. Although a few Germans of lesser rank were eventually tried under Article 228 by German courts in Leipzig, the process was crippled by controversy among Allied observers and widespread, vehement German opposition. A good portion of this controversy sprang from the radically new idea of individual criminal responsibility for acts of war.” Nevertheless, the term “war criminal” was not used. Hague was intended to be used by member states.

The 1920s

Neither the Hague Conventions, nor the Geneva Convention of 1929 Relative to the Treatment of Prisoners of War addressed the punishment of individuals. There was a weak provision, however, in the 1929 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, a predecessor to the First Geneva Convention of 1947. “But these Conventions were to be referred to later in the Nuremberg Judgement.”

While the 1928 Treaty providing for the renunciation of the renunciation of war as an instrument of national policy, better known as the ‘’’Kellogg-Briand Pact’’’, was initially adopted by Germany, the United States of America, France, Great Britain, India, Japan, Poland, and Czechslovakia. It went into force on July 24, 1929, at which time 32 more countries' instruments of definitive adherence brought them into the treaty; a number of other countries later ratified it. In practice, it did nothing to deter World War II, or preliminary conflicts such as the Second Sino-Japanese War. It did, however, provide the basis for the new concept of “crimes against peace”, or “waging aggressive war”, which were part of the indictments in the IMT.

Aftermath of WWII

Post-WWII tribunals at Nuremberg and Tokyo did rule ex post facto in matters such as crimes against peace, although there was some legal background such as the Kellogg-Briand Pact and the Hague Conventions; see Article 19 in the Charter below

IMT

The IMT operated under a charter, Article 14 of which stated that its mission included (emphasis added) “settle the final designation of major war criminals to be tried by the Tribunal”,

Also in the Charter were articles indicating that it might not follow strict international law. This needs to be in the context that much international law for such offenses was not codified until 1949, with the Geneva Conventions.

• Article 19: The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which it deems to be of probative value.
• Article 21: The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official governmental documents and reports of the United Nations, including the acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and of records and findings of military or other Tribunals of any of the United Nations.

Evem though the Tribunals used loose definitions, the United Nations General Assembly recognized them with Resolution 95(1) “Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal.”

Definitions of crimes

Crimes it tried had, as defendants, individuals and organizations. Note that “war crime” is a subset of the list, but that the title of the court include “war criminal”; the grammar is not consistent.

• (a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
• (b) WAR CRIMES: namely, 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;
• (c)CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Membership in criminal organizations

The IMT tried both individuals and organizations. Membership in an organization judged a criminal enterprise, such as the SS and subordinate organizations such as the SD and Gestapo, the Leadership Corps of the Nazi Party, etc., automatically made the member a criminal.

Defenses

The Tribunal rejected defenses based on superior orders. With one significant exception, it rejected tu quoque. The exception was in the prosecution of Karl Doenitz as head of the German submarine force. Admiral Chester W. Nimitz submitted a statement that German submarines had not done anything that U.S. submarines had not.

Nuremberg Military Tribunals

Twelve trials ("cases") were held under U.S. authority following the IMT, focused at the next levels of authority below the Major War Criminals. These individuals were program managers for mass killing in the fields, slave labor, medical experiments, the manufacture of chemicals for gas chambers, etc.

Lesser military tribunals

In re Yamashita was an appeal, to the Supreme Court of the United States, as to the legitimacy of the U.S. Army tribunal that tried Tomoyuki Yamashita, a general in the Imperial Japanese Army, for war crimes. The Court only reviewed the issue of the legality of the tribunal, not the controversial argument of command responsibility, in which Yamashita was tried for atrocities of subordinates, although he had taken positive steps to stop them. In Collins v. McDonald, the Court said, "It is not necessary that the charge in court martial proceedings should be framed with the technical precision of a common-law indictment."

But we conclude that the allegations of the charge, tested by any reasonable standard, adequately allege a violation of the law of war, and that the commission had authority to try and decide the issue which it raised.

Current practices

Bodies such as the International Criminal Court can and do indict suspects. With no enforcement arm, however, it can be difficult to bring them to trial. A leader of an internal insurgency may be accused of war crimes, but also might be part of a reconciliation process. Such problems were simply not issues in the bipolar environments of Nuremberg and Tokyo.

The international dynamics involved with a suspect are complex, as with Bosco Ntaganda in the Democratic Republic of the Congo, where a UN peace operations force is active. In 2000, the UN Office of Legal Affairs said "There would also be significant legal obstacles to MONUC participating in the operation envisaged in the Directive if were to play a prominent role in that operation, whether as a commander of, or senior officer in, one or more of the FARDC units involved, or as a staff officer involved in the planning or execution of the operation or otherwise."

International Criminal Court

The International Criminal Court has "jurisdiction over genocide, crimes against humanity and war crimes. These crimes are defined in detail in the Rome Statute. In addition, a supplementary text of the “Elements of Crimes” provides a breakdown of the elements of each crime. " Its jurisdiction applies to both the direct perpetrators "as well as others who may be liable for the crimes, for example by aiding, abetting or otherwise assisting in the commission of a crime. The latter group also includes military commanders or other superiors whose responsibility is defined in the Statute."

U.S. law

The U.S., along with a number of countries, is not a member of the International Criminal Court. They have been concerned that it could be a venue of lawfare, and also the idea offends domestic constituencies concerned with national sovereignty.

U.S. law defines war crimes principally in terms of the Geneva Conventions, although it has not ratified the 1977 extensions. The basic statute does not address the requirements of trial and conviction. "war crime” means any conduct—

1. defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
2. prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
3. which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or
4. of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.