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War and Violent Crime - War Crimes Mala Prohibita

international prisoners illegality nuremberg

As noted earlier, there have always been rules for war, and they were often codified in treaties. (In 1785 Benjamin Franklin, John Adams, and Thomas Jefferson drafted one of the first of such treaties, between the United States and Prussia, to protect prisoners of war.) There have also always been violators. Psychological as well as structural factors play a major part. War is terrifying, and soldiers are often quite young, sometimes only a few years past adolescence. They are less likely to run amok in combat than they are to turn tail and run (see Keegan). When either happens, it is likely to be the result of a combination of youthful spontaneity, fear, and extraordinary situations that produce an intense "flight or fight" response. As with policing within states, both represent a serious breakdown in bureaucratic control, which can jeopardize organizational goals. Given the time, resources, and expertise, armed forces try to provide careful selection, extensive training, strong leadership, and an emphasis on group loyalty to counter breakdowns in organizational goals and morale. This is reflected in the military personality and the emphasis on hierarchy in the armed forces.

On another level, apart from xenophobia or ethnic hatred, cultural differences between nation states may affect how closely their soldiers follow rules for war. As with crimes mala prohibita within states, there is no widespread agreement across cultures on the illegality of some offenses, which would only be considered wrong because they are defined as such by a law within a nation state (see Nettler, p. 17). For example, in World War II the samurai tradition and the Bushido code inclined Japanese military personnel to choose death over capitulation. Such a tradition does not easily coexist with the compassionate treatment of enemy prisoners or of populations who have surrendered. Thus, from the viewpoint of the Western Allies, where collective duty (makido) is underdeveloped and individualism high, Japanese occupying armies and prisoner of war camps seemed inordinately disdainful.

In an effort to standardize international conduct concerning the treatment of prisoners and civilian populations, the Geneva Convention for the protection of war victims was drawn up in 1949. These four international agreements were signed by the representatives of sixty-one states. Göring and the other twenty high-ranking Nazis who survived for trial at Nuremberg in 1946, before the advent of the Geneva Convention, were accused of committing "crimes against humanity," misdeeds so heinous that they are generally regarded as crimes mala in se, and held to be illegal, whether explicitly codified or not. Although the criminal charges at Nuremberg involved acts that were committed before any laws prohibiting them were written, the illegality of the systematic mass destruction of people by those in charge of a state was regarded as self-evident. Thus, the war crime trials at Nuremberg were not seen by the Allies to have been the post factum application of international law. Further, viewing serious war crimes as mala in se negates the "just following orders" defense, since their illegality is held to be obvious (Robertson).

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