War Crimes

In the nineteenth century, the effort to systematize the laws of war and restrain excesses by the military against civilians and prisoners received a major impetus from an American law professor, Francis Lieber (1800–1872), a German-born veteran of the Napoleonic Wars. In the middle of the American Civil War, Lieber suggested that a code of the law and usages of war be prepared that would be used as a guide by military commanders in their treatment of prisoners of war, irregular guerrilla forces, and captured enemy property. In April 1863, Lieber's code was issued by the Union government under the title "Instructions for the Government of Armies of the United States in the Field." Many European nations, including Prussia, quickly adopted instructions based on the code.

The European nations had meanwhile begun the process of codifying the laws of war by international treaties binding on signatories in all future conflicts. The first step had been the Declaration of Paris (1856), signed by seven European nations, dealing with the seizure of neutral ships carrying enemy goods. The Red Cross Convention (1864), which specifically covered the treatment of the wounded in armies in the field, was signed by twelve European nations. (The United States acceded to it in 1882.) In 1868, eighteen nations signed and ratified another agreement, the Declaration of St. Petersburg, concerned with "projectiles . . . charged with fulminating or inflammable substances."

A more comprehensive treaty, dealing with all aspects of the conduct of war and based largely on the Lieber Code, was prepared by delegates of fifteen nations who met in Brussels in 1874. However, some European powers that had begun to develop new weapons and that faced the prospect of new wars became cool to the idea, and the Brussels Declaration was never officially adopted. Twenty-five years later (1899), on the initiative of Russia, a new conference was called at The Hague that led to the first of a series of international conventions broadly treating the conduct of war. The conference adopted a series of treaties dealing with treatment of prisoners of war and military authority over hostile territory, and prohibiting (for a period of five years) the use of poison gas, expanding bullets ("dumdums"), and bombs dropped from balloons.

In 1907, another conference was held at The Hague, from which emerged fourteen separate treaties, eight of them concerned with maritime matters. Agreement was also reached on a convention dealing with the wounded and prisoners of war, and containing detailed regulations for conduct toward civilians in land warfare. The earlier ban against bombing from balloons was extended.

A new conference at The Hague was planned for 1915. By that time World War I had broken out, and the Hague conventions were being given their first practical application. After the war ended, an Allied commission was appointed to determine whether any enemy soldiers should be tried for violating the laws and customs of war. The commission recommended that an international court be established, composed of representatives of the major powers (a plan later followed in the creation of the Nuremberg Tribunal after World War II), which would apply the principles of the Hague conventions. But the peace commissioners decided to have existing military tribunals from the victorious armies act as the trial courts. The German government strenuously objected, insisting that its own courts should conduct the trials. The Allies agreed to let the Reich Supreme Court at Leipzig handle the charges. A group of German soldiers who had mistreated Allied prisoners were found guilty by the Leipzig court, but were given minor sentences. Two U-boat officers were also tried, for taking part in the torpedoing of a troop ship and the shelling of the survivors (the Llandovery Castle case). But five defendants accused of the atrocities against Belgian civilians that had so outraged the world were acquitted.

After World War I, the European nations also returned to the process of codifying the laws of war. In 1925 they prepared a treaty prohibiting the use of bacteriological methods of warfare. In 1929 two detailed conventions were prepared at Geneva dealing with conduct toward the sick and wounded as well as prisoners of war. Both conventions were to be in force during World War II.

The modern industrial powers continued the effort to define war crimes by treaty in Geneva in 1949, after World War II and the Nuremberg trials. Once again, detailed conventions were laid down, in the following four separate agreements.

1. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.
2. Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea.
3. Convention Relative to the Treatment of Prisoners of War.
4. Convention Relative to the Protection of Civilian Persons in Time of War.

After World War II, the United Nations had taken over the major effort to codify the rules of war. It passed the Genocide Convention in 1948; a resolution against nuclear weapons in 1961; and a resolution on human rights, calling for protection of civilian populations in time of war, in 1968. In the early 1970s the United Nations also urged the International Committee of the Red Cross (ICRC) to develop new agreements on rules of war that would take account of colonial and guerrilla wars, as well as new methods of warfare not covered by earlier conventions. The ICRC brought together a group of experts, who in 1977 produced two protocols to the 1949 Geneva Conventions, dealing with colonial wars of liberation, prisoner-of-war status, and protection of civilian populations (Protocols Additional to the Geneva Convention of August 12, 1949 and Relating to the Protection of Victims of International and Non-international Armed Conflicts, June 10, 1977, 1125 U.N.T.S 609). The United States did not ratify the 1977 protocols.

Another conference was held in Geneva in 1980, to consider restrictions on the use of certain conventional weapons. Three additional protocols were prepared in 1981, covering weapons that introduce nondetectable fragments into the human body; mines, booby traps and other devices; and incendiary weapons (United Nations Conference on Prohibitions or Restrictions on Use of Certain Conventional Weapons: Final Act, U.N. Doc., A/CONF. 95/15 of October 27, 1980 reprinted in 19 I.L.M. 1523, 1530).

In December 1997, 122 countries signed the Landmine Treaty (the Oslo Treaty), which grew out of the 1980 Geneva Conference, banning the use, sale, and production of antipersonnel mines, which ravaged many parts of Asia and Africa (Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction, 36 I.L.M. 1507). The treaty came into force on 1 March 1999, although the United States refused to sign because of objections made by the Department of Defense, which was concerned that it would inhibit its ability to respond to rogue nations who refused to obey or follow the restrictions contained in the treaty.

Efforts to declare the use of nuclear weapons a violation of international law and therefore a war crime have continued for many years. Proponents of such a declaration argue that nuclear weapons by their nature inflict excessive and unnecessary suffering on civilian populations, in violation of the 1907 Hague Convention and the 1949 Geneva conventions (Falk, Meyrowitz, and Sanderson). In fact, in December 1963 a Japanese court did reach such a decision in the famed Shimoda case, in which victims of Hiroshima and Nagasaki sued the Japanese government for damages caused by the dropping of the atomic bombs on those cities. (The Japanese government had waived any claims by its citizens against the United States in the peace treaty of 1951, and thus was sued as a surrogate for the actual perpetrators.)

The Hague and Geneva conventions are a reflection, but not necessarily the source, of the laws of war. International law has evolved out of the customs and practices prevailing among civilized nations, and the rules of war as laid down in the conventions are but one expression of this common heritage. The conventions declare that all nations are bound by basic rules of warfare, whether or not they are signatories to the treaties and whether or not they attempt to withdraw their ratification. Article 63 of the first Geneva Convention of 1949 (relating to wounded and sick in the field) allowed any party to denounce the treaty, but the "denunciation shall have effect only in respect of the denouncing Power. It shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfill by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience." The appeals decision in Tadic also recognized that all nations are bound by "Customary Rules of International Human Rights," regardless of the technical application of a particular treaty or protocol and regardless of whether a nation adhered to their legal provisions.

Those common principles have not varied in their basic outlines for thousands of years: defenseless civilians should not be attacked, prisoners should not be killed, the wounded should be cared for, and weapons of unnecessary destructiveness should not be used.