war crime

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Although an exact definition of this much-used expression is not possible, largely because the term refers to a variety of different transgressions, war crimes could be said to be the violation of national and international laws and customs regarding the resort to war and the conduct of war, and other activities associated with war. Since the Nuremberg and Tokyo trials of 1945-8, it has been accepted in international law that war crimes include at least three types of activity: crimes against peace; crimes against the laws and customs of war (see laws of war) ; and crimes against humanity.

At the end of WW I there was some talk about putting the German war leaders on trial, particularly the hated kaiser, but a tacit recognition prevailed that it might not be such a good idea to delve too deep into who did what to whom and when. Having whipped up popular sentiment with propaganda about German baby-killers and the like this was awkward, but embarrassment is never a sentiment of much weight in information warfare and anyway the general populace was mentally exhausted. However, failure to follow through was to have serious repercussions for the British trying to engage popular sympathy in the USA prior to Pearl Harbor, where the not entirely unfounded suspicion remained ingrained that the USA had been tricked into WW I by British disinformation.

During WW II, the Allied powers had on several occasions made clear their intention to pursue and punish alleged war criminals. The war had seen appalling murders, persecution, and other outrages carried out against combatants and civilian populations alike, the most notorious being the systematic murder of several million people (mainly Jews) in Nazi Germany's death camps, and Japanese mistreatment and murder of POWs and civilians. There was general determination that those responsible should be brought to justice and that any future atrocities should also be punished.

In due course, the great majority of war criminals were tried under a national jurisdiction. In a small number of cases a different process was required, either because of the excessive nature of the crimes, or because the crimes took place outside any one geographical area and could therefore not readily be tried under a national jurisdiction. On 8 August 1945, three months after the surrender of Germany, the USA, Britain, France, and the USSR signed the London Agreement for the ‘Prosecution and Punishment of the Major War Criminals of the European Axis’ and nineteen other states later subscribed. The London Agreement provided for an International Military Tribunal, which would sit in Nuremberg in Germany. The trials began in November 1945 and concluded in October 1946. There were 24 original defendants, one of whom committed suicide, one was declared unfit for trial, three were acquitted, four sentenced to lengthy prison terms, three sentenced to life imprisonment, and twelve sentenced to death by hanging. A similar process was held in Tokyo. The International Military Tribunal for the Far East sat from May 1946 to November 1948. Two of the 25 Tokyo defendants received prison sentences, sixteen were sentenced to life imprisonment, and seven were sentenced to death by hanging.

Article 6 of the August 1945 Charter for the Nuremberg Tribunal defined the three categories of crime. Crimes against peace related to violations under jus ad bellum (laws governing the legitimacy of war) and were defined as ‘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’. Crimes against peace were difficult to prove, and the attempt to do so was thought by some to be an example of retroactive legislation. Nevertheless, with the Kellogg-Briand Pact of 1928 and other treaties and resolutions, there were sufficient grounds to try acts of aggression as infringements of international law.

Jus in bello (laws governing the conduct of war) thinking, on the other hand, drove the prosecution of crimes against the laws of war, which were defined in the Nuremberg Tribunal Charter as ‘murder, ill-treatment, or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder of 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’. In addition, it was accepted that violations of the laws of war could include other acts, such as the use of banned weapons or the misuse of the flag of surrender, which were not explicitly mentioned in the Charter but were covered elsewhere. Indeed, given that there already existed a sizeable body of international law, particularly the Geneva and Hague Conventions, against which the conduct of combatants could be tested, the prosecution of violations of the law of war were in many respects the least contentious aspects of the war crimes trials.

The Nuremberg Tribunal Charter defined crimes against humanity as ‘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’. As such, crimes against humanity were, like crimes against the laws of war, derived more from the jus in bello tradition. The war crimes tribunals were at their most adventurous where the prosecution of crimes against humanity were concerned. Since crimes against humanity could be committed ‘before or during the war’, and since ‘any civilian population’ (including, therefore, that of the offending state) was henceforth to be protected against such crimes, the Nuremberg and Tokyo tribunals tried a new and very broad category of offences. In this respect, the tribunals represented a serious challenge to the traditions of state sovereignty and non-interference; previously, a state had been more or less entitled to treat its citizens as it wished. There was also the defence of ex post facto legislation to contend with; those on trial for crimes against humanity argued that these new developments in international law could not logically or fairly be applied to actions and events which had already taken place.

The international military tribunals established a number of principles, central to the development of international law in the 20th century. One of the most significant of the ‘Nuremberg Principles’ was that war crimes, as defined in the Charter of the Tribunal, were an offence against customary international law and as such were subject to universal jurisdiction. In other words, when a state found that it could not exercise domestic jurisdiction over the national of another country who chose not to present himself for trial, it was entitled to bring a prosecution under international law. What was lacking, of course, was an appropriate method by which the alleged criminal could be brought to trial, a deficiency which did not begin to be addressed until the 1990s. Another principle was that private individuals (and not, therefore, just governments of states) could be tried under international law, and as criminals. This was a revolutionary development, the implications of which were still being realized as the 20th century came to a close. In the words of the Nuremberg Tribunal, ‘Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.’ Furthermore, it was not acceptable for an individual accused of committing war crimes to claim in his defence either that he had acted under superior orders (and perhaps, therefore, under duress or even fear for his own life) or that he had acted out of military necessity (being required to act in certain ways in order to carry out an otherwise just and legal military mission). War crimes, in these respects, were absolute and there could be no plea in mitigation.

Whatever the lawyers said, and it is to be understood that all professions seek at all times to generate complexity so that they may be seen as indispensable, the populations of the defeated nations and not a few among the victors knew that there was nothing new in all of this. Vae victis (woe to the vanquished) is a very old principle indeed, and many of the crimes for which the defendants at Nuremberg and Tokyo were condemned had been committed by the victorious Allies. That a Soviet judge handpicked by Stalin should be involved in condemning anyone for genocide was particularly poignant, and US Adm Nimitz gave testimony in defence of Adm Dönitz on the subject of unrestricted submarine warfare, to no avail. But when the US representative, later Supreme Court Justice, Telford Taylor pointed out that the ‘poisoned chalice’ being fashioned for the defendants was being also held to the lips of their judges, he knew of what he spoke.

The Nuremberg and Tokyo processes both invigorated the post-war development of international criminal and humanitarian law, and prompted wider efforts to bring about the prosecution of acts of inhumanity. In December 1946 the General Assembly of the UN unanimously adopted the Nuremberg Principles. In the 1950s the UN's International Law Commission also adopted the Nuremberg Principles and began its long-running attempt to establish a ‘Code of Offences Against the Peace and Security of Mankind’. In 1968 the UN attempted to remove the statute of limitations from war crimes. In addition, the corpus of international war crimes law was steadily augmented, with the Genocide Convention of 1948, the four Geneva Conventions of 1949, the two Additional Protocols of 1977, and the 1981 UN Weaponry Convention being of particular note.

Individual governments also acted to reinforce or extend the precedents set at Nuremberg and Tokyo. In 1960 Adolf Eichmann, a leading participant in the Nazi ‘final solution’, was tracked down in Argentina by Israeli agents and secretly abducted to Israel. Eichmann was tried in Jerusalem in 1961 for his crimes against the European Jews, found guilty, and sentenced to death by hanging. In 1971 in the USA a young army officer, William Calley, was tried as a war criminal for ordering the My Lai massacre in Vietnam. In 1986, also in the USA, Ivan Demjanjuk, a Ukrainian accused of war crimes committed on behalf of the Nazis, was extradited to Israel, where he was sentenced to death in 1988, although doubts about his identity led to a later reversal. In 1987 a French court tried Klaus Barbie, a leading Nazi figure in the German occupation of France, for crimes against humanity, and sentenced him to life imprisonment. And in April 1999 in Britain, Anthony Sawoniuk was found guilty of murdering Jews in Nazi-occupied Belorussia in 1941. Sawoniuk received two life sentences for his crimes against the laws of war, becoming the first person to be convicted of war crimes in a British court. Taken together, these cases contributed to the development of international war crimes law by showing that individual crimes against international law could be tried nationally, by allowing in certain cases for the exercise of extraterritorial jurisdiction, and by making it impossible for an alleged war criminal to find refuge behind a statute of limitations.

The 1990s saw progress made in arguably the most important and most contentious aspect of war crimes law and practice: the international prosecution of individual breaches of international law. In May 1993 the UN Security Council established an International Criminal Tribunal for the former Yugoslavia. The tribunal, based in The Hague, began to prepare indictments for war crimes committed by the various sides in the Yugoslav conflict, and in April 1995 an alleged Bosnia Serb war criminal—Dusko Tadic—became the first occupant of a new UN detention centre while awaiting trial for outrages committed in the Omarska prison camp. Tadic was later sentenced to 20 years' imprisonment for crimes against humanity. Radovan Karadjic, the Bosnian Serb leader, together with other Serbs, Croatians, and Bosnian Muslims, were also later indicted. Following the recrudescence of genocide and ‘ethnic cleansing’ in Kosovo in early 1999, the Hague tribunal began preparing evidence for another round of indictments.

A second UN International Criminal Tribunal was established in Arusha, Tanzania, to hear cases arising from the atrocities carried out in Rwanda in 1994. The Rwandan president, Juvenal Habyarimana, was killed when his aircraft was shot down over Kigali in April 1994. In the months of violence which followed, over one million Tutsi and Hutu people were massacred, mainly by extremist Hutu interahamwe militia groups. In September 1998, one of the accused, Jean-Paul Akayesu, the Hutu mayor of Taba in central Rwanda, was convicted on nine counts of genocide, torture, rape, murder, crimes against humanity, and breaches of the 1949 Geneva Conventions. Sentenced to life imprisonment, Akayesu became the first person ever to be convicted of genocide by an international court. The judgement also established that rape and sexual violence could be considered genocidal (see gender and war).

The Yugoslav and Rwandan tribunals, although far-reaching, are nevertheless ad hoc tribunals in the model of Nuremberg and Tokyo, dealing with crimes committed in specific conflicts by specific (and weak) regimes or individuals. Since the end of WW II there have been calls for the investigation and prosecution of war crimes to be managed in a genuinely international and more systematic manner. That goal came close to being realized in July 1998 in Rome, when the statute for the establishment of the International Criminal Court was opened for signature. When the preparatory work and negotiations have been completed, the Rome statute will see the creation of a permanent, free-standing court, able generally to hear cases of war crimes wherever and whenever they may have been committed. The International Criminal Court will also have its own, independent prosecutor. But one may entertain a modest doubt that the poisoned chalice will ever be held to the lips of those upon whose funding it will depend.

— Paul Cornish

Defined largely by international treaties, conventions, and tribunals, war crimes generally fall into one of three categories: crimes against peace; crimes against humanity; and conventional war crimes, which involve egregious violations of the customs and laws of war. They are based on the assumptions that aggressive war and certain actions by civilian officials or military personnel in war can be limited or at least punished.

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.]

Bibliography

• Morris Greenspan, The Soldier's Guide to the Laws of War, 1969.
• Richard Hammer, The Court‐Martial of Lieutenant Calley, 1971.
• R. H. Minear, Victor's Justice: The Tokyo War Crimes Trial, 1971.
• S. D. Baily, Prohibitions and Restraints in War, 1972.
• Seymour Hersh, Cover‐up, 1972.
• James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War, 1981.
• C. Hosoya, et al. eds., The Tokyo War Crimes Trial: An International Symposium, 1986.
• Telford Taylor, Anatomy of the Nuremberg Trials: A Personal Memoir, 1992.
• George J. Andreopoulos and Mark R. Shulman, eds., The Laws of War: Constraints on Warfare in the Western World, 1994.
• Geoffrey Best, War and Law Since 1945, 1994.
• Theodor Merron, Comments: War Crimes in Yugoslavia and the Development of International Law, American Journal of International Law, 88 (January 1994), p. 78.
• Joseph E. Persico, Nuremberg: Infamy on Trial, 1994.
• Michael R. Marrus, ed., The Nuremberg War Crimes Trial: A Documentary History, 1997

An action carried out during the conduct of a war that violates accepted international rules of war.

war criminal

See the Introduction, Abbreviations and Pronunciation for further details.

Individual responsibility for violations of the laws or customs of war. Such responsibility covers both the commission of such crimes and the ordering or facilitating of them and the rule violated must belong either to the body of customary international law or be part of an applicable treaty. The first, although unsuccessful, attempts at the prosecution of war crimes took place after the First World War. The issue of individual responsibility re-emerged during the Second World War, with allied declarations 1942 and 1943 expressing the determination to prosecute and punish major war criminals and to establish the tribunals that were to take place at Nuremberg and Tokyo. Such crimes covered ‘crimes against humanity’, defined by the Charter of the International Military Tribunal established at Nuremberg as ‘murder, extermination, enslavement, deportation, and other inhumane acts committed against a civilian population, before or during a war, or persecutions on political, racial, or religious grounds …’; and also the crime of aggression and crimes against peace, namely ‘planning, preparation, initiation or waging of a war of aggression’. War crimes are also understood in terms of those acts that are defined as ‘grave breaches’ of the 1949 Geneva Conventions and Additional Protocol 1 of 1977. More recently they are defined in the 1993 Statute of the International Criminal Tribunal for the former Yugoslavia, by the 1994 Statute of the International Criminal Tribunal for Rwanda, and in Article 8 of the 1998 Rome Statute of the International Criminal Court. The 1990s saw a greater willingness on the part of states to establish international courts to prosecute war crimes with the establishment of the tribunals dealing with the former Yugoslavia and Rwanda and the successful negotiation of the Rome Statute of the International Criminal Court. As of 15 May 2002 139 states were signatories to the Rome Statute. The treaty was ratified by over 60 states, enough for the court to come into force on 1 July 2002—but without the participation of the United States.

— Andrew Hurrell

Those 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, comprised 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 intra-national civil wars.

See: Hitler, Adolf; Tokyo Trial.

Acts committed by soldiers or government officials, either in the course of a war or in bringing on a war, that violate the customs of warfare. Examples of war crimes include atrocities committed against civilians (see My Lai massacre) and the mistreatment of prisoners of war. After World War II, twenty-two Nazi leaders were tried at Nuremberg by the victorious Allies, and twelve were sentenced to death for war crimes. (See Nuremberg trials.)

"War Crimes" redirects here. For the West Wing episode, see War Crimes (The West Wing).

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War crimes are "violations of the laws or customs of war"; including "murder, the ill-treatment or deportation of civilian residents of an occupied territory to slave labor camps", "the murder or ill-treatment of prisoners of war", the killing of hostages, "the wanton destruction of cities, towns and villages, and any devastation not justified by military, or civilian necessity".^[1]

The execution of Soviet prisoners of war by German personnel.

Similar concepts, such as perfidy, have existed for many centuries as customary law between civilized countries. Many of these customary laws were clarified in the Hague Conventions of 1899 and 1907. The modern concept of war crime was further developed under the auspices of the Nuremberg Trials based on the definition in the London Charter that was published on August 8, 1945. (Also see Nuremberg Principles.) Along with war crimes the charter also defined crimes against peace and crimes against humanity, which are often committed during wars and in concert with war crimes.

Article 22 of the Hague IV ("Laws of War: Laws and Customs of War on Land (Hague IV); October 18, 1907") states that "The right of belligerents to adopt means of injuring the enemy is not unlimited"^[2] and over the last century many other treaties have introduced positive laws that place constraints on belligerents (see International treaties on the laws of war). Some of the provisions, such as those in the Hague conventions, are considered to be part of customary international law, and are binding on all.^[3] Others are only binding on individuals if the belligerent power to which they belong is a party to the treaty which introduced the constraint.

Contents 1 Definition 2 History 2.1 Early example 2.2 Hague Conventions 2.3 Geneva Conventions 2.4 Leipzig War Crimes Trial 2.5 London Charter / Nuremburg Trials 1945 2.6 International Military Tribunal for the Far East 1946 2.7 International Criminal Court 2002 3 Prominent indictees 4 Punishment 5 Ambiguity of the term 6 See also 7 Further reading 8 Footnotes 9 External links

Definition

Aftermath of the Malmedy massacre (1944)

Colloquial definitions of war crime include violations of established protections of the laws of war, but also include failures to adhere to norms of procedure and rules of battle, such as attacking those displaying a flag of truce, or using that same flag as a ruse of war to mount an attack. Attacking enemy troops while they are being deployed by way of a parachute is not a war crime.^[4] However, Protocol I, Article 42 of the Geneva Conventions explicitly forbids attacking parachutists who eject from damaged airplanes, and surrendering parachutists once landed.^[5] War crimes include such acts as mistreatment of prisoners of war or civilians. War crimes are sometimes part of instances of mass murder and genocide though these crimes are more broadly covered under international humanitarian law described as crimes against humanity.

War crimes are significant in international humanitarian law^[6] because it is an area where international tribunals such as the Nuremberg Trials and Tokyo trials have been convened. Recent examples are the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, which were established by the UN Security Council acting under Chapter VIII of the UN Charter.

Under the Nuremberg Principles, war crimes are different from crimes against peace which is planning, preparing, initiating, or waging a war of aggression, or a war in violation of international treaties, agreements, or assurances.

History

Hsuchow, China, 1938. A ditch full of the bodies of Chinese civilians, killed by Japanese soldiers.^[7]

Early example

The trial of Peter von Hagenbach by an ad hoc tribunal of the Holy Roman Empire in 1474, was the first “international” war crimes trial, and also of command responsibility. He was convicted and beheaded for crimes that "he as a knight was deemed to have a duty to prevent", although he had argued that he was only "following orders".

Hague Conventions

Main article: Hague Conventions (1899 and 1907)

The Hague Conventions were international treaties negotiated at the First and Second Peace Conferences at The Hague, Netherlands in 1899 and 1907, respectively, and were, along with the First and Second Geneva Conventions (1864 and 1909), among the first formal statements of the laws of war and war crimes in the nascent body of secular international law.

Geneva Conventions

Main article: Geneva Conventions

The Geneva Conventions are four related treaties adopted between 1864 and 1949 that represent a legal basis for International Law with regard to conduct of warfare. Not all nations are signatories to the GC, and as such retain different codes and values with regard to wartime conduct. Some signatories have routinely violated the Geneva Conventions in a way which either uses the ambiguities of law or political maneuvering to sidestep the laws' formalities and principles.

All conventions were revised and expanded in 1949.

• First Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field" (first adopted in 1864, last revision in 1949).
• Second Geneva Convention "for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea" (first adopted in 1906).
• Third Geneva Convention "relative to the Treatment of Prisoners of War" (first adopted in 1929, last revision in 1949).
• Fourth Geneva Convention "relative to the Protection of Civilian Persons in Time of War" (first adopted in 1949, based on parts of the 1907 Hague Convention IV).

Leipzig War Crimes Trial

Main article: Leipzig War Crimes Trial

Several German military commanders of the First World War were tried in 1921 by the German Supreme Court for war crimes.

London Charter / Nuremburg Trials 1945

Main article: London Charter of the International Military Tribunal

The modern concept of war crime was further developed under the auspices of the Nuremberg Trials based on the definition in the London Charter that was published on August 8, 1945. (Also see Nuremberg Principles.) Along with war crimes the charter also defined crimes against peace and crimes against humanity, which are often committed during wars and in concert with war crimes.

International Military Tribunal for the Far East 1946

Main article: International Military Tribunal for the Far East

Also known as the Tokyo Trial, the Tokyo War Crimes Tribunal or simply as the Tribunal, it was convened on May 3, 1946 to try the leaders of the Empire of Japan for three types of crimes: "Class A" (crimes against peace), "Class B" (war crimes), and "Class C" (crimes against humanity), committed during World War II.

International Criminal Court 2002

Vietnamese women and children in My Lai, March 16, 1968.^[8] Photo by Ronald L. Haeberle

On July 1, 2002, the International Criminal Court, a treaty-based court located in The Hague, came into being for the prosecution of war crimes committed on or after that date. However, several nations, most notably the United States, China, and Israel, have criticized the court and refuse to participate in it or to permit the court to have jurisdiction over their citizens. Note, however, that a citizen of one of the 'objector nations' could still appear before the Court if they were accused of committing war crimes in a country that was a state party, regardless of the fact that their country of origin was not a signatory.^{[citation needed]}

However the court only has jurisdiction over these crimes where they are "part of a plan or policy or as part of a large-scale commission of such crimes".^[9]

Prominent indictees

Main article: List of war crimes

Heads of state & government

To date, the present and former heads of state and heads of government that have been charged with war crimes include:

• Germany Großadmiral Karl Dönitz, Prime Ministers Generals Hideki Tojo and Kuniaki Koiso of the Empire of Japan in the aftermath of World War II.
• Former Yugoslav President Slobodan Milošević was brought to trial for alleged war crimes, but died as essentially an innocent man in custody on March 11, 2006 under suspicious circumstances and after mounting a vigorous defense, before the trial could be concluded after more than 4 years of proceedings.
• Former Liberian President Charles G. Taylor was also brought to the Hague charged with war crimes; his trial was provisionally scheduled to begin in April 2007, but was postponed until June 2007 to allow the defense more time to prepare, and is now ongoing.
• Former Bosnian Serb President Radovan Karadžić was arrested in Belgrade on 18 July, 2008 and brought before Belgrade’s War Crimes Court a few days after. He was extradited to the Netherlands, and is currently in The Hague, in the custody of the International Criminal Tribunal for the former Yugoslavia. He has not yet entered a plea; his next appearance was on 29 August 2008.

• Omar al-Bashir, current head of state of Sudan. He is currently resisting the indictment.

Other prominent indictees  

• Sadao Araki and Yoshijiro Umezu, generals in the Imperial Japanese Army
• Seishiro Itagaki, War minister of the Empire of Japan
• Hermann Göring, Commander in Chief of the Luftwaffe.
• Ernst Kaltenbrunner and Adolf Eichmann - high ranking members of the SS.
• Ratko Mladić (usually referred to as "General Mladić") has been indicted for genocide during the Bosnian War; he has not been caught and awaits capture for multiple war crimes against Bosnian Muslims.
• Wilhelm Keitel - Generalfeldmarschall, head of the Oberkommando der Wehrmacht.
• Erich Raeder - Großadmiral, Commander in Chief of the Kriegsmarine.
• Kōichi Kido, Lord Keeper of the Privy Seal of Japan

Punishment

The punishment for committing war crimes was capital punishment, but in many cases, war criminals were sent to national prisons to live out the rest of their lives. At the modern international tribunals, capital punishment is banned, and conviction results in a sentence for a term of years. The convicted person serves his or her sentence in a national prison system, whose country has agreed with the tribunal to effect execution of sentence.^{[citation needed]}

Ambiguity of the term

A memorial at cemetery Heidefriedhof in Dresden. It reads: "Wieviele starben? Wer kennt die Zahl?/An deinen Wunden sieht man die Qual/der Namenlosen die hier verbrannt/im Hoellenfeuer aus Menschenhand." ("How many died? Who knows the number/ In your wounds one can see the agony/ of the nameless ones, who burned to death here/ in a hellfire made by human hand.")

Because the definition of a state of "war" may be debated, the term "war crime" itself has seen different usage under different systems of international and military law. It has some degree of application outside of what some may consider to be a state of "war," but in areas where conflicts persist enough to constitute social instability.

The legalities of war have sometimes been accused of containing favoritism toward the winners ("Victor's justice"), as certain controversies have not been ruled as war crimes. Some examples include the Allies' destruction of civilian Axis targets during World War I and World War II (the firebombing of the German city of Dresden is one such example), the use of atomic bombs on Hiroshima and Nagasaki in World War II; the use of Agent Orange against civilian targets in the Vietnam war; the mass killing of Biharies by Kader Siddique and Mukti Bahini^[10] before or after victory of Bangladesh Liberation War in Bangladesh between 1971 and 1972; and the Indonesian occupation of East Timor between 1976 and 1999.

Another example is the Allied re-designation of German POWs (under the protection of the Geneva conventions) into Disarmed Enemy Forces (allegedly unprotected by the Geneva conventions), many of which then were used for forced labor such as clearing minefields. By December 1945 it was estimated by French authorities that 2,000 German prisoners were being killed or maimed each month in mine-clearing accidents.^[11]

In areas where International Law is yet unresolved, some ambiguity remains with regard to which crimes are considered as such and which are not.

See also

Country listings List of war crimes Allied war crimes during World War II War crimes committed by the United States German war crimes War crimes of the Wehrmacht Soviet war crimes Japanese war crimes International Military Tribunal for the Far East United States Senate Committee on the Philippines 1971 Bangladesh atrocities Armenian Genocide

Legal issues Rule of Law in Armed Conflicts Project (RULAC) Laws of war Command responsibility War Crimes Law (Belgium) Russell Tribunal The International Criminal Court and the 2003 invasion of Iraq Special Court for Sierra Leone

Miscellaneous Crime against humanity Crime against peace NKVD prisoner massacres Consequences of German Nazism Human shield International Criminal Court investigations Transitional justice Nuremberg Principles Katyn massacre Srebrenica massacre Forensic archaeology Terror bombing

Genocide portal

Further reading

• Mark Santillen "My Life with Pietro Koch - The history of the beast of Frascati". Gunther edition , Rome 2007
• Aryeh Neier, War Crimes: Brutality, Genocide, Terror and the Search for Justice. New York: Times Books & Random House, 1998.
• Fabio Maniscalco, World Heritage and War, monographic collection "Mediterraneum", vol. 6, Naples: Massa Publisher, 2007.
• The Rule of Law in Armed Conflicts Project
• Documents and Resources on War, War Crimes and Genocide
• Iraqi Special Tribunal
• Crimes of War Project
• Rome Treaty of the International Criminal Court
• Special Court for Sierra Leone
• UN International Criminal Tribunal for the former Yugoslavia
• Weblog about the hunt for indicted warcriminals in the Former Yugoslavia
• Web page about the war crimes against cultural property
• UN International Criminal Tribunal for Rwanda
• Ad-Hoc Court for East Timor
• CBC Digital Archives -Fleeing Justice: War Criminals in Canada
• USArmy Crimes in Iraq
• Khojaly massacre

Footnotes

1. ^ Nicolas Werth, Karel Bartošek, Jean-Louis Panné, Jean-Louis Margolin, Andrzej Paczkowski, Stéphane Courtois, The Black Book of Communism: Crimes, Terror, Repression, Harvard University Press, 1999, hardcover, 858 pages, ISBN 0-674-07608-7, page 5.
2. ^ http://avalon.law.yale.edu/20th_century/hague04.asp
3. ^ Judgement: The Law Relating to War Crimes and Crimes Against Humanity contained in the Avalon Project archive at Yale Law School. "but by 1939 these rules laid down in the [Hague] Convention [of 1907] were recognised by all civilized nations, and were regarded as being declaratory of the laws and customs of war"
4. ^ From the Library of Congress, Military Legal Resources.[1]
5. ^ Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflict, International Committee of the Red Cross, Geneva, Switzerland. (Protocol I)
6. ^ The Program for Humanitarian Policy and Conflict Research, "Brief Primer on IHL" Accessed at http://ihl.ihlresearch.org/index.cfm?fuseaction=page.viewpage&pageid=2083
7. ^ It may be pointless to try to establish which World War Two Axis aggressor, Germany or Japan, was the more brutal to the peoples it victimised. The Germans killed six million Jews and 20 million Russians [i.e. Soviet citizens]; the Japanese slaughtered as many as 30 million Filipinos, Malays, Vietnamese, Cambodians, Indonesians and Burmese, at least 23 million of them ethnic Chinese. Both nations looted the countries they conquered on a monumental scale, though Japan plundered more, over a longer period, than the Nazis. Both conquerors enslaved millions and exploited them as forced labourers—and, in the case of the Japanese, as [forced] prostitutes for front-line troops. Johnson, Looting of Asia
8. ^ "Report of the Department of Army review of the preliminary investigations into the My Lai incident. Volume III, Exhibits, Book 6 — Photographs, 14 March 1970". From the Library of Congress, Military Legal Resources.[2]
9. ^ Rome Statute, Part II, Article 8.
10. ^ Interview With History by Oriana Fallaci-
11. ^ S. P. MacKenzie "The Treatment of Prisoners of War in World War II" The Journal of Modern History, Vol. 66, No. 3. (Sep., 1994), pp. 487-520.

External links

• "International criminal jurisdiction". International Committee of the Red Cross. http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/section_ihl_international_criminal_jurisdiction/. 
• "Cambodia Tribunal Monitor". Northwestern University School of Law Center for International Human Rights and Documentation Center of Cambodia. http://www.cambodiatribunal.org/. Retrieved 2008-12-17. 
• Burns, John (January 30 2008). "Quarter, Giving No". Crimes of War Project. http://www.crimesofwar.org/thebook/quarter-giving-no.html. Retrieved 2008-12-17. 
• "War Crimes: Videos, Forums and Communities". War Crimes Limited (UK). 2008. http://warcrimes.tv. Retrieved 2008-12-17. 
• "Video: War Criminals Balkans". http://www.youtube.com/watch?v=Y3cx5pciVWM. Retrieved 2008-12-17. 

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