Scarinci: ‘Law, Not War’ – The History of War Crimes

Much of our modern understanding of “war crimes” evolved in the aftermath of World War II, most notably during the Nuremberg war-crimes trials.

The U.S. House of Representatives recently approved legislation to award the Congressional Gold Medal to Benjamin Berell Ferencz, the United States’ lead prosecutor who investigated and prosecuted Nazi war crimes.

Ferencz, a U.S. Army sergeant during the war, “provided overwhelming evidence to implicate German doctors, lawyers, judges, generals, industrialists, and others in genocide.” After the war, he joined the team of lawyers in the Nuremberg trials. He convicted many Nazi war criminals, especially those who did unspeakable acts during the Holocaust.  For the rest of his life, Ferencz lived by the moral imperative, “replace the law of force with the force of law.”

Historical Evolution of War Crimes

Given the brutal nature of war, allegations of war crimes often come from both sides of an armed conflict, which is why we now have international courts of justice to determine when lines are legally crossed. There are also established “rules” that govern international armed conflict.

Historians believe the term “war crime” first appeared in German in 1872. Johann Casper Bluntschli used it to describe military forces acting without orders during wartime. The notion of war crimes was first recognized in the United States during the Civil War. Under the Union’s Instructions for the Government of Armies of the United States in the Field, it was a “serious breach of the law of war to force the subjects of the enemy into service for the victorious government.” The military code also prohibited “wanton violence committed against persons in the invaded country,” including murder, rape, and torture.

Over time, the laws of war have evolved to cover not only warring parties, but also civilians who are not part of the hostilities. Accordingly, under modern law, war crimes may be committed against either combatants or non-combatants.

The first international war crimes trials followed World War II, as the Allied Powers sought to hold Nazi leaders accountable for genocide and other atrocities they committed. The London Charter established the International Military Tribunal (IMT) and served as the guiding document for the Nuremberg trials. It was the first to establish that heads of state and military leaders could be held accountable for their conduct during war, including harm inflicted on their own citizens. In total, 199 defendants were tried, 161 were convicted, and 37 were sentenced to death.

Internationally accepted rules of armed conflict were later outlined in the 1949 Geneva Conventions, which have since been ratified by all member nations. Additional treaties, such as two 1977 Additional Protocols, establish more laws of war. Nevertheless, no single document in international law codifies all war crimes.

Modern Definition of War Crimes

The legal definition of war crimes has expanded in several international treaties. Today, the overarching goal is to protect innocent civilians and to minimize suffering on both sides of the conflict.

Under the Geneva Conventions, potential war crimes include willful killing, torture, rape, hostage taking, unfair treatment of prisoners of war, and unjustified destruction and appropriation of property. International treaties further prohibit intentionally directing attacks against the civilian population/objects and utilizing the presence of civilians to render certain points, areas, or military forces immune from military operations.

International law bans intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission, such as UN peacekeeping forces. Otherwise, civilian targets can become legitimate military targets, with the caveat that military operations must be proportional and designed to avoid excessive civilian casualties.

While the definition of war crimes seems straightforward under international law, prosecuting violations is far more controversial. Unlike the clear atrocities prosecuted at Nuremberg, 21^st Century warfare involves many more gray areas, particularly when conflicts involve high-tech weapons, terrorist regimes, and high civilian casualties.