While in practice ‘wars’ have been fought since the dawn of marked civilization, the idea of “war crimes” as a whole never really took root until the 19th Century. This was in all probability brought about by the humanitarian reformation that the west could describe as their period of enlightenment.
Drawing back to the 11th Century when Viking Invaders dominated the Northern European landscape while the middle-eastern side was privy to the Crusades- a series of wars backed by the ideology to liberate Jerusalem which was then ruled over by Islamic Emperors, wars have frequented the pages of history.
The concept of humanitarian treatment refused to pervade through conscious thought with the celebratory privilege of a victor’s spoils taking primary stage. This was visible in further conquests. According to Thucydides, the people of Melos were slaughtered by the Athenians for their refusal to surrender during the Peloponnesian War. The massacre of Cathari in the Albigensian Crusade in the 13th Century saw the first modern case of genocide. 20th Century events like the Armenian Massacre that took place in 1915 by the Turkish Ottoman Empire, the Extermination of European Jews, Roma and other groups, commonly described as the Holocaust, in World War 2.
Thus, in order to define an ideal into existence posed to be an obstacle towards mankind’s quest for the creation of peace. It is assumed that the events of World War 1 aided in the attempt to systematically lend meaning to war crimes and its various types, titled “Instructions for the Government of Armies of the United States in the Field” commonly shortened to its more known epithet “the Lieber Code” after its author Francis Lieber.
The Lieber Code, having found its issuance during the American Civil War, laid down certain base principles, which would be used to create a more comprehensive list in the future, holding that “a serious breach of the ‘law of war’ to force the subjects of the enemy into service for the victorious government” and prohibited “wanton violence committed against persons in the invaded country.” This most likely included offences of rape, maiming and murder, to list a few, of which, once proven beyond a reasonable doubt, the punishment would be death.
NUREMBERG AND TOKYO TRIALS
We skip directly to World War 2 to prosecute those who committed atrocities during the Nazi Regime under Adolf Hitler. At the same time, the Moscow Declaration of 1943 signified the unification of countries (the United States, Great Britain, and the Soviet Union) alongside the Postdam Declaration of 1945 that brought China into the fold, to address the issue of war crimes committed by both the Japanese and German Governments.
Once the war ended, there arose a need to fulfill reparations to the countries and their civilians who had faced mass human right casualties while political play spearheaded international tensions. This led to the creation of the London Agreement which was a tribunal that was established to try major Axis power criminals whose offences could not be pinpointed to specific locations, geographically. There was mass assent by 19 countries which led to what we now know as the Nurnberg Charter.
The Charter afforded legal sanctions to the creation of the Nurnberg Tribunal which would primarily go on to deal with three specific war crimes; (1) crimes against peace (2) conventional war crimes and (3) crimes against humanity which also went on to include Genocide, as well.
However, it is worth mentioning that the Nurnberg Trials preceded the Convention on the Prevention and Punishment of the Crime of Genocide (this was adopted by the General Assembly only in the year 1948) which was why Nazi criminals were not held to be guilty of exterminating millions of Jews, Roma’s and the like.
Meanwhile, towards the Eastern side of the Globe, the International Military Tribunal for the Far East tried Japanese war criminals under the powers acceded to it by the Tokyo Charter. Having lasted almost 2 entire years, the trials ended with 7 of the accused sentenced to death by hanging, 16 to life imprisonment and 2 with lesser terms. Although it is worth noting that none of the criminals did end up serving their complete sentences as by 1958 most of the accused had been either pardoned or paroled.
One of the issues that both tribunals faced was that of their jurisdiction and as such its extent. A common doubt that arose was whether the law would allow for states to try and prosecute the nationals of other states, charged with crimes against international law, committed in yet other states.
The Charter and its framers agreed that it did bestow upon domestic courts such legal rights, especially since the focal point remained on the commission of offences with no particular location that could be pinpointed.
In the case of the Attorney General of the Government of Israel v. Eichmann, a wider view was interpreted. The judgment was pronounced by the District Court of Jerusalem against Adolf Eichmann who was convicted of war crimes committed against the Jewish people as well as other crimes against humanity. And while Israel wasn’t a recognized state back then and the crimes weren’t committed on Israeli soil, the court held in favour of the petitioners, stating that such acts could be tried by any state that had the defendant in its custody.
Another problem that arose found its base on the principles of Vicarious Liability. Various defendants during the Nurnberg trials had sought for relief through the doctrine of vicariousness stating that they had merely obeyed the orders of their superiors. The second principle takes root in an ideal that is found closer to home. The Indian Penal Code provides for a general exception where it is stated that nothing can be an offence when it is done by a person who is bound by law to do it.
Unfortunately, the framers of the charter foresaw complications of like matter cropping up and thus added that superior orders would not relieve a defendant of liability completely but would be considered in mitigation, instead. This explained why there were no convictions brought against those responsible for bombing Allied cities or waging of unrestricted submarine warfare.
The legal horizon noted an abundance of treaties and conventions taking rise once the Nurnberg and Tokyo trials ended. There was an attempt to create a comprehensive document that would lend legal enforceability to what would constitute as a war crime. Out of this need arose what we now have as the four Geneva Conventions, spanning across various time-frames of history.
The first was borne out of Henry Dunant’s efforts, founder of the Red Cross, who initiated a dialogue between international communities to provide immunity to those wounded in battle. The Convention came to be known as the ‘Amelioration of the Wounded in Time of War’, 1864. This was key in affording the Red Cross recognition as a symbol for identifying persons and equipment covered by the agreement.
The 1864 Convention was then ratified within the next 3 years but found itself amended and extended by the second convention leading to the solidified neutrality status afforded to the sick and wounded.
The third convention, also known as the prisoner-of-war convention established the responsibility of providing humane treatment, adequate food and relief supplies to those captured along with forbidding the use of torturous methods of investigation to gain more than the minimum supply of information from captured enemy soldiers.
The fourth convention while non-revolutionary, served to reinforce the humanitarian stand taken by all those who had agreed to the conventions. As the world reeled from the heavy effects of two wars and countless deaths and violence, it was deemed to be a necessary reminder. It also forbade the deportation of individuals, the taking of hostages, torturing said hostages, collective punishment and any offenses that may constitute an “outrage against personal dignity” in addition to prohibiting judicial sentences that were doled out without due process and clear discriminatory prejudices held based on race, religion, nationality or political beliefs.
However, as time passed by, it became clear that society as a whole was progressing far quicker than what the framers of these conventions anticipated. So much so that all four conventions were presumed to be on the precipice of going obsolete. This led to two optional protocols which were approved in 1977.
Protocol 1 extended protection to people, combatants and civilians, who were involved in international conflicts. It also established fact-finding commissions in cases where there arose alleged breaches of the convention. Protocol 2 extended Human Rights Protection to those involved in civil conflicts. Neither of these two topics had been covered by the earlier accords.
POST-COLD WAR ERA
The end of the cold war brought to light various ethnic issues between groups mainly found in clusters throughout Eastern and Central Europe. And that is how we moved from Super-power conflict to civil wars erupting across countries. This ended up blurring the lines between Internal and International conflicts which made it harder to create a fine line of distinction between the substantive and procedural laws that remained applicable with every case that cropped up.
However, the Geneva Conventions proceeded to reflect their importance in the establishment of war-crimes tribunals for Yugoslavia (1993) and Rwanda (1994) and the Rome Statute which was instrumental towards the rise of the International Criminal Court.
RWANDA & YUGOSLAVIA WAR-CRIME TRIBUNALS
The early-90’s ushered in activism to prevent further acts of “ethnic cleansing” between remnants of what was formerly Yugoslavia whilst also restoring peace in the Balkan region. This was when the UNSC finally decided to establish the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (ICTY).
The following year another Tribunal was formed to deal with crimes of genocide in Rwanda. The ICTR (International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1st January to 31st December, 1994.
When compared to its Tokyo and Nurnberg contemporaries, the Tribunals lacked the jurisdiction to mete out Capital Punishment and were instead restricted to imposing terms of imprisonment.
The statutes that governed both judicial bodies were vital in lending definition to ‘war crimes’. The ICTY had its jurisdictional powers embedded into four umbrella categories being (1) Grave breaches of the Geneva Convention (2) Violations in the laws or customs of war (3) Genocide and (4) Crimes against Humanity.
The wide powers attributed to both tribunals led them to be one of the first international bodies that recognized sexual violence as a crime linked to war. And whilst lower-level defendants were to be tried by their own national courts, thus subjecting only Rwandan leaders (In the case of the Rwanda Crimes Tribunal) to their ambit, both tribunals saw the prosecution of those charged with rape, murder, torture, deportation and enslavement.
What is noteworthy amongst all four tribunals is that no weight was offered to the defendant’s position in political parties or the titles they held in the country as a whole. This was taken to be an insufficient basis to escape culpability. For example, in 1999 the ICTY indicted Slobodan Milosevic, the President of Serbia (1989-97) and Yugoslav (1997-2000) for war crimes.