War crime

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"War Crimes" redirects here. For the West Wing episode, see War Crimes (The West Wing). For the 2005 film, see War Crimes (film).
Outline of war
Criminology
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Types of crime
A picture taken by the Polish Underground of Nazi Secret Police rounding up Polish intelligentsia at Palmiry near Warsaw in 1940 for mass execution (German AB-Aktion in occupied Poland).

A war crime is a serious violation of the laws and customs of war (also known as international humanitarian law) giving rise to individual criminal responsibility. Examples of war crimes include "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 necessity."[2]

Similar concepts, such as perfidy, have existed for many centuries as customs between civilized countries, but these customs were first codified as international law in the Hague Conventions of 1899 and 1907. The modern concept of a 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 wartime 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."[3] 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, the Geneva, and Genocide Conventions, are considered to be part of customary international law, and are binding on all.[4][5] Others are only binding on individuals if the belligerent power to which they belong is a party to the treaty which introduced the constraint.

History

Suchow, China, 1938. A ditch full of the bodies of Chinese civilians, killed by Japanese soldiers.[1]

Early examples

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.[6][7] 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".

In 1654 a Major Connaught (Royalist) was tried at Chester Assizes and hanged for his part in the massacre of villagers in the church at the village of Boughton, Cheshire in 1643. Twelve villagers were smoked out,stripped naked and had their throats cut. He was hanged at the scene of the crime having been convicted of striking a blow to the head of John Fowler with an axe.[8]

In 1865, Henry Wirz, a Confederate officer, was held accountable by a military tribunal and hanged for appalling conditions at Andersonville Prison where many Union POWs died during the American Civil War.

Halabja poison gas attack, 1988, Iran–Iraq War.

Hague Conventions

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 Geneva Conventions, 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 and continuously expanded from 1864 to 1949 that represent a legal basis and framework for the conduct of war under international law. Every single member state of the United Nations has currently ratified the conventions, which are universally accepted as customary international law, applicable to every situation of armed conflict in the world. However, the Additional Protocols to the Geneva Conventions adopted in 1977 containing the most pertinent, detailed and virulent protections of international humanitarian law for persons and objects in modern warfare are still not ratified by a number of States continuously engaged in armed conflicts, namely the United States, Israel, India, Pakistan, Iraq, Iran, and others. Accordingly, states 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.

Three conventions were revised and expanded with the fourth one added in 1949:

  • First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field was adopted in 1864, significantly revised and replaced by the 1906 version,[9] the 1929 version, and later the First Geneva Convention of 1949[10]).
  • Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea was adopted in 1906,[11] significantly revised and replaced by the Second Geneva Convention of 1949).
  • Third Geneva Convention relative to the Treatment of Prisoners of War (Convention on relative to the Treatment of Prisoners of War was adopted in 1929, significantly revised and replaced by the Third Geneva Convention of 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).

Two Additional Protocols were adopted in 1977 with the third one added in 2005, completing and updating the Geneva Conventions:

  • Protocol I (1977) relating to the Protection of Victims of International Armed Conflicts.
  • Protocol II (1977) relating to the Protection of Victims of Non-International Armed Conflicts.
  • Protocol III (2005) relating to the Adoption of an Additional Distinctive Emblem.


Leipzig War Crimes Trial

Main article: Leipzig War Crimes Trials

A small number of German military personnel of the First World War were tried in 1921 by the German Supreme Court for alleged war crimes.

London Charter / Nuremberg Trials 1945

Main articles: London Charter of the International Military Tribunal and Nuremberg Trials

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

Bodies of some of the hundreds of Vietnamese villagers who were murdered by U.S. soldiers during the My Lai Massacre.

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. Several nations, most notably the United States, China, Russia, and Israel, have criticized the court. The United States still participates as an observer. Article 12 of the Rome Statute provides jurisdiction over the citizens of non-contracting states in the event that they are accused of committing crimes in the territory of one of the state parties.[12]

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".[13]

Prominent indictees

Main articles: List of war crimes and List of people indicted in the International Criminal Court
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:

  • German Großadmiral and President Karl Dönitz and Japanese Prime Ministers and Generals Hideki Tōjō and Kuniaki Koiso in the aftermath of World War II.
  • Former Yugoslav President Slobodan Milošević was brought to trial for alleged war crimes, but died in custody in 2006 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 stretched from 2007 to March 2011. He was convicted in April 2012.[14]
  • Former Bosnian Serb President Radovan Karadžić was arrested in Belgrade on July 18, 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. The trial began in 2010 and is expected to continue until 2014.
Sudanese President Omar al-Bashir, wanted by the ICC for war crimes and crimes against humanity.
  • Omar al-Bashir, current head of state of Sudan, for actions in Darfur.
  • Former Libyan leader Muammar Gaddafi was indicted for allegedly ordering the killings of protesters and civilians during the 2011 Libyan civil war, however he was killed before he could stand trial in October 2011.
Other prominent indictees

Definition

Aftermath of the Malmedy massacre (1944).

War crimes are serious violations of the rules of customary and treaty law concerning international humanitarian law that have become accepted as criminal offenses for which there is individual responsibility.[16] 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 peaceful flag of truce, or using that same flag as a ruse to mount an attack on enemy troops. Wearing enemy uniforms or civilian clothes to infiltrate enemy lines for espionage or sabotage missions is a legitimate ruse of war, though fighting in combat or assassinating individuals, even if he or she is a military target, behind enemy lines while so disguised is not, as it constitutes unlawful perfidy.[17][18][19][20] Attacking enemy troops while they are being deployed by way of a parachute is not a war crime.[21] However, Protocol I, Article 42 of the Geneva Conventions explicitly forbids attacking parachutists who eject from disabled aircraft and surrendering parachutists once landed.[22] Article 30 of the 1907 Hague Convention IV - The Laws and Customs of War on Land explicitly prohibits belligerents to punish enemy spies without previous trial.[23] War crimes include such acts as mistreatment of prisoners of war or civilians. In 2008, the U.N. Security Council adopted Resolution 1820, which noted that "rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide"; see also war rape.[24] 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.

Mass grave of Soviet POWs, killed by Germans. Some 3.3 million Soviet POWs died in Nazi custody.

War crimes are significant in international humanitarian law[25] 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. 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"),[26] as some controversies have not been ruled as war crimes. Some examples include the Allies' destruction of Axis cities during World War II, such as the firebombing of Dresden and the atomic bombings of Hiroshima and Nagasaki;[27] and the mass killing of Biharies by Kader Siddique and Mukti Bahini[28] before or after victory of Bangladesh Liberation War in Bangladesh between 1971 and 1972.

Two women in Gulu, Uganda whose lips have been cut off by Lord's Resistance Army rebels.

In regards to the strategic bombing during World War II, it should be noticed that at the time, there was no international treaty or instrument protecting a civilian population specifically from attack by aircraft,[29] therefore the aerial attacks on civilians were not officially war crimes. Because of this, the Allies at the trials in Nuremberg and Tokyo never prosecuted the Germans, including Luftwaffe commander-in-chief Hermann Göring, for the bombing raids on Warsaw, Rotterdam, and British cities during the Blitz as well as the indiscriminate attacks on Allied cities with V-1 flying bombs and V-2 rockets nor the Japanese for the aerial attacks on crowded Chinese cities.[30] Although there are no treaties specific to aerial warfare,[29] Protocol 1, Article 51 of the Geneva Conventions explicitly prohibits the bombardment of cities where civilian population might be concentrated regardless of any method.[22] (see Aerial bombardment and international law).

Controversy aroused when the Allies re-designated German POWs (under the protection of the 1929 Geneva Convention on Prisoners of War) as Disarmed Enemy Forces (allegedly unprotected by the 1929 Geneva Convention on Prisoners of War), many of which then were used for forced labor such as clearing minefields.[citation needed] By December 1945, six months after the war had ended, it was estimated by French authorities that 2,000 German prisoners were still being killed or maimed each month in mine-clearing accidents.[31] The wording of the 1949 Third Geneva Convention was intentionally altered from that of the 1929 convention so that soldiers who "fall into the power" following surrender or mass capitulation of an enemy are now protected as well as those taken prisoner in the course of fighting.[32][33]

See also

Legal issues

Footnotes

  1. ↑ It may be pointless to try to establish which World War II 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
  2. ↑ Gary D. Solis (15 February 2010). The Law of Armed Conflict: International Humanitarian Law in War. Cambridge University Press. pp. 301–303. ISBN 978-1-139-48711-5. 
  3. ↑ "The Avalon Project—Laws of War : Laws and Customs of War on Land (Hague IV); October 18, 1907". Avalon.law.yale.edu. Retrieved May 3, 2010. 
  4. ↑ 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"
  5. ↑ "Report Of The Secretary-General Pursuant To Paragraph 2 Of Security Council Resolution 808 (1993)". S/25704. United Nations. 3 May 1993. Retrieved October 13, 2010. "35. The part of conventional international humanitarian law which has beyond doubt become part of international customary law is the law applicable in armed conflict as embodied in: the Geneva Conventions of August 12, 1949 for the Protection of War Victims; The Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto of October 18, 1907; the Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948; and the Charter of the International Military Tribunal of August 8, 1945." 
  6. ↑ The evolution of individual criminal responsibility under international law By Edoardo Greppi, Associate Professor of International Law at the University of Turin, Italy, International Committee of the Red Cross No. 835, p. 531–553, October 30, 1999.
  7. ↑ highlights the first international war crimes tribunal by Linda Grant, Harvard Law Bulletin.
  8. ↑ http://hoydensandfirebrands.blogspot.co.uk/2012_08_01_archive.html
  9. ↑ "Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field. Geneva, 6 July 1906". International Committee of the Red Cross. Retrieved July 20, 2013. 
  10. ↑ 1949 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
  11. ↑ David P. Forsythe (June 17, 2007). The International Committee of the Red Cross: A Neutral Humanitarian Actor. Routledge. p. 43. ISBN 0-415-34151-5. 
  12. ↑ "Rome Statute of the International Criminal Court, 1998". UN Treaty Organization. Retrieved October 13, 2010. 
  13. ↑ "Rome Statute, Part II, Article 8". legal.un.org. Retrieved 2013-10-18. 
  14. ↑ "Trial of Charles Taylor ends - Europe". Al Jazeera English. Retrieved 2012-05-02. 
  15. ↑ "BBC News - Ratko Mladic trial: Charge sheet amended - Brammertz". Bbc.co.uk. 2011-06-01. Retrieved 2012-05-02. 
  16. ↑ Shaw, M.N (2008). International Law. Cambridge University Press. pp. 433–434. ISBN 978-0-521-89929-1. 
  17. ↑ Smith, Michael (2007). Killer Elite: The Inside Story of America's Most Secret Special Operations Team. New York, New York: St. Martin's Press. ISBN 0-312-36272-2. 
  18. ↑ Beckwith, Charlie A.; Knox, Donald (2003). Delta Force: The Army's Elite Counterterrorist Unit. Avon. ISBN 0-380-80939-7. 
  19. ↑ "United States of America, Practice Relating to Rule 65. Perfidy, Section I. Simulation of civilian status". International Red Cross. 
  20. ↑ "United States of America, Practice Relating to Rule 62. Improper Use of Flags or Military Emblems, Insignia or Uniforms of the Adversary". International Red Cross. 
  21. ↑ From the Library of Congress, Military Legal Resources.
  22. ↑ 22.0 22.1 Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflict, International Committee of the Red Cross, Geneva, Switzerland.(Protocol I)
  23. ↑ "Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907.". International Committee of the Red Cross. Retrieved July 24, 2013. 
  24. ↑ http://www.un.org/News/Press/docs/2008/sc9364.doc.htm
  25. ↑ 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
  26. ↑ Zolo, Danilo (November 2, 2009). Victors' Justice: From Nuremberg to Baghdad. Verso. ISBN 978-1-84467-317-9. 
  27. ↑ "The Atomic Bombing, The Tokyo War Crimes Tribunal and the Shimoda Case: Lessons for Anti-Nuclear Legal Movements by Yuki Tanaka and Richard Falk". Wagingpeace.org. Retrieved 2012-05-02. 
  28. ↑ Interview With History by Oriana Fallaci-
  29. ↑ 29.0 29.1 Javier Guisández Gómez (June 30, 1998). "The Law of Air Warfare". International Review of the Red Cross (323): 347–363. Retrieved June 21, 2013. 
  30. ↑ Terror from the Sky: The Bombing of German Cities in World War II. Berghahn Books. 2010. p. 167. ISBN 1-84545-844-3. 
  31. ↑ 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.
  32. ↑ ICRC Commentaries on the Convention (III) relative to the Treatment of Prisoners of War Article 5 "One category of military personnel which was refused the advantages of the Convention in the course of the Second World War comprised German and Japanese troops who fell into enemy hands on the capitulation of their countries in 1945 (6). The German capitulation was both political, involving the dissolution of the Government, and military, whereas the Japanese capitulation was only military. Moreover, the situation was different since Germany was a party to the 1929 Convention and Japan was not. Nevertheless, the German and Japanese troops were considered as surrendered enemy personnel and were deprived of the protection provided by the 1929 Convention relative to the Treatment of Prisoners of War."
  33. ↑ ICRC Commentaries on the Convention (III) relative to the Treatment of Prisoners of War Article 5 "Under the present provision, the Convention applies to persons who "fall into the power" of the enemy. This term is also used in the opening sentence of Article 4, replacing the expression "captured" which was used in the 1929 Convention (Article 1). It indicates clearly that the treatment laid down by the Convention is applicable not only to military personnel taken prisoner in the course of fighting, but also to those who fall into the hands of the adversary following surrender or mass capitulation."

References

External links

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