Professional Documents
Culture Documents
Antilkumar Gandhi
Professor Eric Farber
Sociology 100
Summer 2009
War Crimes p. 2
Abstract
What are war crimes? Inhuman acts have been committed in all wars throughout
human history. It has only been in the last 2 centuries that certain acts that were
committed during war were found to be so reprehensible that they were labeled war
crimes. Even thought these acts were committed during the "fog of war", they still
merited punishment in a court of law in the eyes of the international community. When
military and political leaders began to systematically target large civilian groups because
of their nationality, ethnicity, gender or religion, then the international community began
to see the necessity of holding political leaders accountable for their political decisions in
After World War II, when the atrocities of the Holocaust became well known, the
victorious Allied powers decided to hold war crimes tribunals to punish the political and
military leaders of Germany and Japan. The Nuremberg and Tokyo trials were the first
of their kind in establishing international precedent for the prosecution of war crimes.
Later war crimes that were committed in Yugoslavia and Rwanda resulted in the creation
of separate tribunals by the United Nations to punish the leaders who perpetrated these
acts. Attempts are being made to set up an International Criminal Court, but several
powerful countries, including the United States, have refused to support its establishment.
War Crimes p. 3
Introduction
The history of war crimes tribunals only begins after World War II, when the
Nuremberg and Tokyo tribunals were established. The Allied powers of World War I
attempted to prosecute war crimes committed by the Axis powers, but no prosecutions by
an international tribunal ever took place. A commission established after World War I in
1919 by the victorious powers sought the prosecution of enemy nationals, even leaders,
guilty of offences against "the laws and customs of war or the laws of humanity,"
(Cassette, 2000). At the end of the war, both the Treaty of Sèvres (between the Allied
powers and Turkey) and the Treaty of Versailles (the Allied powers and Germany)
provided for the prosecution of central power war criminals (i.e. Turkish and German),
including Kaiser Wilhelm II, before international tribunals. Although the idea of
occurred. Kaiser Wilhelm was given sanctuary in the Netherlands, and only a few
prosecutions of German war criminals by the German Supreme Court took place.
After World War II, the total defeat of the Axis powers created a historic
opportunity for the establishment of the first international body for the prosecution of war
criminals. Shocked by the extent and horrors of the atrocities committed by the Nazis and
the Japanese and empowered by their status as victor nations, the Allies signed an
agreement creating the International Military Tribunal (IMT) for the prosecution of major
war criminals of the European Axis. This was soon followed in Japan by the
crimes.
War Crimes p. 4
These tribunals were given the authority by the Allied powers to prosecute
German and Japanese leaders for "crimes against the peace" (the crime of waging an
aggressive war), "crimes against humanity" and "war crimes" (of which the existence was
debatable in international law at the time), (Beasley, 2009). The tribunals were not
concerned with the prosecution of each and every enemy national responsible for
committing war crimes, but only the major players — people responsible for planning
and instigating aggressive war and atrocities committed during the war.
Although they adhered to certain minimum basic principles of justice, they were
For example, rather than being international tribunals, they were attacked for being
collectively exercising their powers and jurisdiction. Importantly, the tribunals were
powers for crimes committed by them during the war. They had no authority to prosecute
war crimes committed by any members of the Allied forces. For these reasons, they were
criticized as constituting little more than ‘victors’ justice’. This was particularly the case
with the Tokyo tribunal. Many criticized the hypocrisy of prosecuting Japanese leaders
for war crimes, when the Americans were guilty of the nuclear bombings of Hiroshima
and Nagasaki.
In 1945, at the time of the establishment of the Nuremberg and Tokyo tribunals,
there was very little precedent or law providing for the criminalization of war crimes or
the act of waging aggressive war. The whole concept of ‘crimes against humanity’ was
largely unknown. Though international law at the time had outlawed aggressive war to an
War Crimes p. 5
extent and did attempt to regulate conduct during war (Dyer, 2009), none of these treaties
doing so made provision for the criminal prosecution and punishment of individuals
guilty of breaches. The Nuremberg and Tokyo charters were effectively the first
international instruments to do so. Although the Hague conventions and the early Geneva
conventions outlawed certain conduct during war, they did not specifically criminalize
such conduct or provide for criminal prosecutions and punishment, (Dyer, 2009).
Prior to the Nuremberg and Tokyo tribunals there was also very little precedent
for the idea of crimes against humanity — crimes which, because of their enormity, are
not only crimes against the specific societies where they were perpetrated, but crimes
against the whole international community, (Cassette, 2000). Their inclusion in the
Nuremberg and Tokyo charters was therefore an innovation. Although much criticized,
the Nuremberg and Tokyo tribunals were of fundamental importance to the development
the concept of individual criminal responsibility in international law. For the first time in
modern history, people (in particular high-ranking leaders) were held accountable for
their actions during war, (Cassette, 2000). In so doing, these tribunals entrenched the
idea that individuals, even leaders of state, could individually be held criminally
responsible under international law for their actions. No longer was international law
simply concerned with the actions of states, but it was now paying attention to the acts of
individuals and was prepared to hold them accountable for their acts.
crimes, including war crimes, were adopted in subsequent decades. The first such treaty
War Crimes p. 6
was the Genocide Convention of 1948, (Dyer, 2009). The concept of genocide — the
against humanity) — was a new legal concept conceived in response to Nazi German
atrocities. The Convention provides that signatory states have an obligation to punish
offenders. Offenders are supposed to be tried either by the state where the crime of
genocide. Although a draft statute for an international criminal court was produced in
1951, due to political reasons no such international court was ever established, (Cassette,
2000).
These conventions categorize certain serious war crimes as grave breaches, and place an
obligation on states parties to criminalize and provide for the prosecution of such grave
and punish grave breaches committed not only by their own nationals, but also those
committed by the nationals of any other state party. They were thus the first treaties to
jurisdiction in terms of which all states have the authority to prosecute certain crimes,
regardless of whether they were committed on their own territory or by their own
Following the charters and judgments of the Nuremberg and Tokyo tribunals,
crimes against humanity became well and truly entrenched in international law. In
accordance with the judgments of these tribunals (and later international law
instruments), crimes against humanity are now commonly accepted as giving rise to
War Crimes p. 7
tribunal. Finally, the Geneva protocols were adopted in 1977. They extend protection to
victims of non-international armed conflicts, and provide for universal jurisdiction over
Thus, by 1977, the notion of international crimes over which any state has
jurisdiction and the authority to prosecute, either in its own domestic courts, or under the
international criminal law and the authority of states to prosecute war crimes had
undergone substantial development since the end of World War II, there were still very
few actual prosecutions. A few states, including Israel, Canada, Germany, the United
Kingdom and Australia, adopted municipal legislation, which empowers their courts to
prosecute and punish war crimes, even if committed outside of their territory. A few
prosecutions have taken place as a consequence of this legislation. Perhaps the most
terms of such legislation, was the Eichmann trial, (Chambers, 2000). Eichmann, who had
Europe, was charged and convicted in the 1960s by the Israeli government for genocide,
war crimes, and crimes against humanity committed during World War II.
in 1951, were suspended, largely as a result of the Cold War. States were unwilling to
international framework of laws for criminalizing war crimes was being shaped, there
War Crimes p. 8
was no mechanism to enforce them. It took the end of the Cold War and the power of the
international media to galvanize the international community into further action. In 1993,
after widespread international media coverage of the atrocities committed in the war in
the former Yugoslavia, the UN Security Council established the International Criminal
Tribunal for the former Yugoslavia (ICTY). Soon, in the aftermath of the 1994 genocide
in Rwanda, the International Criminal Tribunal for Rwanda (ICTR) was also established
by the Security Council. These tribunals differ from the Nuremberg and Tokyo tribunals
in a number of important respects. They were not instituted by individual states through
Council in accordance with binding Security Council resolutions. They were thus
sense, they constitute the first real ‘international criminal tribunals’ ever.
At the time when the ICTY was established, the war was still raging in the former
Yugoslavia. It was hoped by those who promoted the establishment of the ICTY that by
bringing to justice war criminals responsible for perpetrating the policies of ethnic
cleansing which characterized the war; the continuing violence in the former Yugoslavia
would be diffused — enabling the negotiation of peace. In the context of Rwanda, it was
hoped that the prosecution of those responsible for planning and implementing the 1994
genocide would help to prevent the outbreak of future cycles of violence, (Hauss, 2003).
As long as the perpetrators of the genocide remained free and unpunished, a climate of
fear, hatred and the desire for revenge would continue, ultimately resulting in further
promote peacemaking and peace building: peacemaking in the context of the former
Yugoslavia, in that the establishment of the ICTY was an attempt to bring or restore
peace; and peace building in the context of Rwanda, in that the establishment of the ICTR
was an attempt to consolidate and build upon a fragile peace (achieved after the victory
Like the Nuremberg and Tokyo tribunals, both the ICTY and the ICTR only have
limited jurisdiction to prosecute very specific crimes. The ICTY has jurisdiction over all
former Yugoslavia since 1991" — including genocide, crimes against humanity and war
crimes. The ICTR has jurisdiction over "serious violations of international humanitarian
law committed in the territory of Rwanda between 1 January 1994 and 31 December
1994" — including genocide, crimes against humanity and war crimes. For this reason,
both these UN war crimes tribunals are known as ad hoc tribunals. They do not have
generalized powers to prosecute all war crimes in any situation or context. Because they
were established by the Security Council as measures to establish and maintain peace,
they can be dissolved by the Security Council at any stage when it determines that they
are no longer necessary for the maintenance of peace in their respective regions. They
The ad hoc nature of the tribunals has exposed them to severe criticism. Many
have questioned why the international community saw fit to go to the expense and trouble
of prosecuting violations committed in these contexts, but not in many other instances of
gross violations of humanitarian law. Such selective enforcement of international law and
War Crimes p. 10
justice is unfair both to surviving victims and to perpetrators. While these criticisms are
valid, it would be hard to deny that the establishment of special tribunals to deal with
specific atrocities committed in these two contexts was better than the international
themselves. They were hampered by a lack of resources, infrastructure and state co-
operation. This severely impacted upon their effectiveness. Although both tribunals
began to issue indictments reasonably quickly, it took a long time before they were able
to get custody over a sizeable number of those accused. It is not up to the tribunals to
secure the arrest of high-level accused. They do not have the mechanism or powers to
so. The situation has improved with both tribunals having a number of accused in
custody, including several high-level accused. Several convictions have also been made.
It is therefore fair to say that, notwithstanding their shortcomings, much has been
achieved by these ad hoc tribunals. While some may debate their contribution to peace,
there is no doubt that they have established the beginnings of a proper international
criminal justice enforcement system. Not only has substantive and procedural
international criminal law been significantly advanced and developed by them, but they
have proved that international criminal prosecutions are viable and practical. Since their
establishment, it has become increasingly difficult for people accused of gross human
rights violations to escape with impunity. It is also ultimately because of the work of the
ad hoc tribunals that the creation of a permanent international criminal court has become
War Crimes p. 11
a greater possibility. In July 1998, the Rome Statute of the International Criminal Court
was adopted. After decades of debate over the issue, this statute finally makes provision
for the establishment of a permanent international criminal court. If and when it comes
into force, the International Criminal Court will be a permanent international institution,
which will have powers to prosecute individuals for genocide, crimes against humanity
and war crimes. This court will effectively have jurisdiction to prosecute war crimes
committed in states or by nationals of states signatory to the statute. It will thus not be
limited to a particular situation or territory, although the extent of its jurisdiction will
obviously depend upon the number of states which become party to the statute.
prosecutions in any state, the court will only be entitled to exercise jurisdiction where the
In accordance with the statute, all states parties will have an obligation to co-
operate with the court, including arresting indicted persons. This is similar to the
obligations that all states have in terms of the ICTY and ICTR. However, the difference
is that this obligation is not imposed by the Security Council, but is simply a treaty
obligation. Any duty to co-operate and arrest is also not imposed in terms of the UN
Charter. It is limited to states parties and is not in itself enforceable by the Security
Council. As with the ICTY and ICTR, because there is no permanent international police
force, the enforcement of the orders of the permanent criminal court will largely depend
upon individual state co-operation. The effectiveness of the court will therefore once
Conclusion
criminal responsibility. All states are authorized and arguably obliged in certain
circumstances to provide for the prosecution of such crimes — either by their own
tribunals.
two ad hoc tribunals for the former Yugoslavia and Rwanda, and has finally crystallized
into the potential establishment of a permanent international criminal court, which will
As the precedents of the tribunals for the former Yugoslavia and Rwanda show,
the effectiveness of an international criminal court depends upon state co-operation, both
at the investigation stage and in effecting arrests. The growing momentum of these ad
for Sierra Leone supports this observation, and augurs well for the prospect of a
War Crimes p. 13
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