War Crimes and Military Justice Summary

  • Last updated on November 11, 2022

Humans have committed war crimes against one another since wars were fought with clubs and stones, and for centuries war crimes were accepted as part of the horrendous price of waging war.

Overview

Humans have committed war crimes against one another since wars were fought with clubs and stones, and for centuries war crimes were accepted as part of the horrendous price of waging war. As war evolved, so did a body of treaties and laws that sought to regulate the treatment of soldiers and civilians involved in war. The Hague ConventionsHague Conventions were international treaties negotiated at the First and Second Peace Conferences at The Hague, Netherlands, in 1899 and 1907, and were, along with the Geneva ConventionsGeneva Conventions, among the first formal statements of the laws of war and war crimes in international law. Article 147 of the Fourth Geneva Convention defines war crimes as:

Willful killing, torture or inhuman treatment including . . . willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person of the rights of fair and regular trial, . . . taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.War crimesMilitary justiceJustice (military)International lawWar crimesMilitary justiceCrimes, warJustice (military)International law

International lawyers stipulate that this is the basic definition of war crimes.

Since war crimes are associated with war, Military tribunalsmilitary tribunals or military commissions are used to try people in military custody or those accused of violating a law of war. Courts-martial[Courts martial]Courts-martial generally have jurisdiction over members of their own military. Military tribunals usually provide quick trials under the conditions of war, but critics say these trials occur at the expense of justice. Military tribunals do not satisfy most protections and guarantees of the U.S. Bill of Rights, but many presidents of the United States have used them and Congress has authorized them.

Significance

World War II (1939-1945)[World War 02];war crimesWorld War II brought sweeping changes to populations and places and new definitions and understandings of war crimes. This global conflict transformed the concept of war crimes, necessitating a practical means of defining them and determining the punishments for them. Chief among the reasons for this transformation were the HolocaustNazi murders of seven million people, mainly Jews, and the Japanese murders and mistreatment of both civilians and prisons of war. The Allied powers prosecuted the Nazis for their war crimes at the Nuremberg war crimes trials (1945-1946)Nuremberg Trials in 1945 and 1946, and twelve Nazi leaders were executed as a result. Japanese perpetrators were also tried, in Tokyo war crimes trials (1946-1948)Tokyo in 1948, and seven Japanese commanders were hanged, although Japanese emperor Hirohito was excluded from the prosecutions.

The idea that an individual can be held responsible for the actions of a country or that nation’s soldiers is the core concept of war crimes. GenocideGenocide, crimes against humanity, and mistreatment of civilians or combatants during war all fall under the category of war crimes, with genocide being the most severe of these crimes. The trials at Nuremberg and Tokyo set the precedents for the cases that the modern-day tribunal in The Hague hears.

Since World War II, the issue of war crimes has become even more pressing with the outbreak of smaller wars all over the globe. The United Nations established tribunals to try crimes against humanity in the former Yugoslavia and in Rwanda. The U.S. Senate, on March 13, 1998, unanimously passed a resolution urging the United Nations to create a tribunal to indict and try Hussein, SaddamHussein, SaddamSaddam Hussein as an international war criminal for “his crimes against humanity.” Congress also passed the War Crimes Act (1996)War Crimes Act of 1996, which defines and punishes offenses against the law of nations and violations of both the Geneva and Hague conventions. This U.S. law granted jurisdiction over these war crimes to federal district courts but did not intend for the act to override the long-standing jurisdiction of American military commissions and general courts-martial over war crimes.

History of War Crimes and Military JusticeAncient World

The ancient world did not have a codified definition of war crimes. The nature of warfare guaranteed that war crimes were committed in almost every war fought, and both religious and civil leaders were often guilty of war crimes, at least by their modern definition.

The Massacre of Thessalonica Massacre (390 c.e.)Thessalonica provides one example. In 390 c.e., the citizens of the Greek city Thessalonica rose in revolt against the ruling Romans, and Emperor Theodosius I took immediate action. The flash point of the uprising occurred when BothericBotheric, a Gothic general in the emperor’s army, ordered a popular charioteer arrested for trying to seduce a servant of the emperor or the general himself. The charioteer went to prison, but the citizens of Thessalonica demanded his release. In the following chaos, Botheric was killed, and then the emperor intervened and ordered executions. The emperor’s intervention came too late, and angry Gothic troops massacred seven thousand people in Thessalonica’s hippodrome.

This event exemplifies issues that modern theorists of war crimes and debaters over the power of military tribunals are still addressing: How should retaliatory actions during war be defined, and who should determine the punishment of the perpetrators? Theodosius I the GreatTheodosius I the Great (Eastern Roman emperor)[Theodosius 01]Theodosius I ruled Rome, but according to the Catholic Church, he had to answer to the Supreme Being. In fact, the Church excommunicated Theodosius I and readmitted him to the Eucharist only after he had spent several months in public penance.

Medieval World

During medieval times, either kings or military commanders in charge of campaigns issued ordinances of war, which laid down the ground rules governing conflicts. Many of these ordinances dealt with matters that might in later centuries be considered to be war crimes. For example, in 1385, Richard IIRichard II (king of England)[Richard 02]Richard II of England set out in his Durham Ordinances (1385)Durham Ordinances rules that prohibited robbery, pillage, and the killing or capture of unarmed persons belonging to the Church and of unarmed women. In 1419, Henry VHenry V (king of England)[Henry 05]Henry V put out his Mantes Ordinances (1419)Mantes Ordinances, which barred soldiers from entering a place where a woman was lying and prohibiting them from robbing women. Lower-class tenant farmers were protected, and the capture of children below the age of fourteen, unless they were the children of persons of rank (because they would bring a high ransom), was also prohibited. Not all monarchs or lords were so inclined to limit the activities of their soldiers, and such ordinances were issued only on a case-by-case basis.

Modern World

In the twentieth century, “war crimes” have come to be defined by international conventions, the Geneva ConventionsGeneva Conventions and the Hague ConventionsHague Conventions, which had evolved over the course of the late nineteenth and early twentieth centuries. Following World War II, the atrocities perpetrated by aggressor states reached not only international proportions but also levels of inhumanity that offended most modern human sensibilities. Hence, in the 1950’s and later, the Geneva Conventions were refined to define war crimes and their prosecution, and the International Criminal CourtInternational Criminal Court at The Hague was set up to hear tribunals involving those who have perpetrated “ethnic cleansing” and other atrocities.

Even democratic governments can be guilty of genocide and war crimes. The Trail of Tears (1838-1839)Trail of Tears–the forced relocation of American Indians;removalNative Americans;removalNative Americans from their homelands in the southern United States to Indian Territory (present-day Oklahoma) in the western United States–is a significant example. In 1831, the CherokeesCherokee, Chickasaw, Choctaw, Creek, and Seminole tribes, together known as the Five Civilized TribesFive Civilized Tribes, were living as autonomous nations in the American South. By 1839, with the Cherokee removal, all of them had been forced to walk hundreds of miles west to live on reservations in Indian Territory.

President Jackson, AndrewJackson, AndrewAndrew Jackson pressured the Cherokees to sign a removal treaty. Jackson’s successor, Van Buren, MartinVan Buren, MartinMartin Van Buren, imposed the terms of the treaty by allowing Georgia, Tennessee, North Carolina, and Alabama to raise an armed force of seven thousand troops, composed of militia, regular army, and volunteers. General Scott, WinfieldScott, WinfieldWinfield Scott (later famous for his role in the Civil War) led the army, which rounded up thirteen thousand Cherokees and forced them to march more than one thousand miles–mostly on foot and without shoes, moccasins, or adequate clothing–to face the harsh winter weather of the Indian Territory. Approximately fifty-five hundred Cherokees died during this trek, now called the Long March (1934-1935)Long March (1834-1835).

During these tumultuous times, the Cherokee Ross, JohnRoss, JohnJohn Ross (1790-1866) proved to be the dominant spokesperson for his people. Of about seven-eighths Scottish ancestry, Ross had grown up in Cherokee and frontier American environments and had earned great wealth and an elite place in the Cherokee Nation. He represented the Cherokee Nation to the U.S. government, especially in the Cherokees’ cases before the Supreme Court. Ross’s life and career shone a glaring spotlight on many nineteenth century European American assumptions about Native Americans and race, revealing the willingness of white American citizens, as well as the U.S. government, to engage in war crimes and de facto genocide before modern definitions of war crimes identified their acts as such.

Another war, the American Civil War (1861-1865);war crimesAmerican Civil War (1861-1865), highlighted the uneven relationships between war crimes, military tribunals, and practical applications of justice. Mudd, Samuel AlexanderMudd, Samuel AlexanderSamuel Alexander Mudd (1833-1883), a physician, practiced medicine in Maryland and in 1865 was implicated and imprisoned for aiding and conspiring with actor Booth, John WilkesBooth, John WilkesJohn Wilkes Booth and others in the assassination of President Lincoln, Abraham;assassinationAbraham Lincoln. Lincoln had used the exigencies of war to justify suspending the writ of habeas corpus and allowing controversial, and some claimed illegal, military tribunals to try both civilians and soldiers. In an ironic twist of history on May 1, 1865 (about two weeks after Lincoln was assassinated), President Johnson, AndrewJohnson, AndrewAndrew Johnson authorized one of the controversial tribunals to try the assassins. Historians agree that Dr. Mudd knew Booth well, and some believe that Mudd knew about and actively participated in the conspiracy. The authorities arrested Mudd, and the military tribunal, mostly based on circumstantial evidence, found him, along with seven others, guilty of conspiracy to murder Lincoln. Mudd was sentenced to life imprisonment at Fort Jefferson, 70 miles west of Key West, Florida, in the Gulf of Mexico. President Johnson pardoned Mudd on February 8, 1869, partially because of his heroic efforts to fight a yellow fever epidemic in the prison.

The story of Lieutenant Calley, WilliamCalley, WilliamWilliam Calley, a U.S. Army officer who was found guilty of ordering the My Lai Massacre (1968)My Lai Massacre on March 16, 1968, during the Vietnam War (1961-1975), illustrates the potent and potentially disastrous mixture of political expediency and justice. Born in 1943 in Miami, Florida, William Laws Calley, Jr., enlisted in the U.S. Army in July, 1966. He arrived in Vietnam in 1967 as a second lieutenant of infantry and was the leader of First Platoon Company C, First Battalion, Twentieth Infantry of the Twenty-third Infantry Division of the United States. On March 16, 1968, Calley ordered his men to kill everyone in the village of My Lai, a small Vietnamese village. In the ensuing bloodbath, the soldiers killed at least five hundred villagers, mostly women and children. Calley was court-martialed in November 1970, and as his defense claimed that he was following the orders of his immediate superior, Captain Medina, ErnestMedina, ErnestErnest Medina. In March, 1971, the jury convicted Calley of the premeditated murder of twenty-two Vietnamese civilians and sentenced him to life imprisonment at hard labor. Medina was acquitted.

Twenty-six officers and soldiers were initially charged for their part in the My Lai Massacre, but Calley was the only one convicted. Many Americans were outraged at his conviction and believed that the court-martial had not been just. On April 1, 1971–the day after Calley’s sentencing–President Nixon, Richard M.Nixon, Richard M.Richard Nixon ordered Calley transferred from prison to house arrest at Fort Benning, pending appeal of his sentence. Secretary of Defense Laird, MelvinLaird, MelvinMelvin Laird protested this leniency, and the prosecutor, Daniel, AubreyDaniel, AubreyAubrey Daniel, wrote, “The greatest tragedy of all will be if political expedience dictates the compromise of such a fundamental moral principle as the inherent unlawfulness of the murder of innocent persons.”

Defendants at the Nuremberg Trials circa 1946 are (left to right, front row) Hermann Göring, Rudolf Hess, Joachim von Ribbentrop, Wilhelm Keitel, and (left to right, second row) Karl Dönitz, Erich Räder, Baldur von Schirach, and Fritz Sauckel.

(NARA)

After more military interventions and another review by President Nixon, Calley served only three years of his sentence. Judge Elliott, J. RobertElliott, J. RobertJ. Robert Elliott of the federal district court granted him habeas corpus on September 25, 1974, along with immediate release, and further reviews and appeals upheld the habeas corpus writ. Some legal arguments contend that the outcome of the My Lai courts-martial reversed the Nuremberg and Tokyo war crimes tribunals, which set a historic precedent by establishing the principle that no one can use “following orders” as a defense for committing war crimes. The New York Times quoted Secretary of the Callaway, Army HowardCallaway, Army Howard Army Howard Callaway as stating that Calley’s sentence was reduced because he (Calley) honestly believed that he was following orders. This reasoning directly contradicts the standards of the Nuremberg and Tokyo war crimes tribunals, which executed German and Japanese soldiers for murdering civilians.

The United States’ invasion of Iraq War (beg. 2003)Iraq in 2003 applied another wartime litmus test of the Geneva Conventions. In 2004, stories of physical, psychological, and sexual abuse of prisoners began to surface from the Abu Ghraib prisonAbu Ghraib prison in Iraq, including a 60 Minutes II news report and a New Yorker article by Seymour Hersh. The personnel of the 372nd Military Police Company of the United States Army and other government agencies were identified as the perpetrators.

Donald Rumsfeld, DonaldRumsfeld, DonaldHenry Rumsfeld (born 1932), an American businessman, served as the thirteenth secretary of defense under President Gerald Ford and the twenty-first secretary of defense under President George W. Bush (2001-2006). When the stories about Abu Ghraib broke, he addressed the Senate Armed Services Committee on May 7, 2004:

These events occurred on my watch. As secretary of defense, I am accountable for them. I take full responsibility. It is my obligation to evaluate what happened, to make sure those who have committed wrongdoing are brought to justice, and to make changes as needed to see that it doesn’t happen again. . . . To those Iraqis who were mistreated by members of U.S. armed forces, I offer my deepest apology. It was un-American. And it was inconsistent with the values of our nation.

War crimesMilitary justiceCrimes, warJustice (military)International law

Books and Articles
  • Belknap, Michael R. The Vietnam War on Trial: The My Lai Massacre and the Court Martial of Lieutenant Calley. Lawrence: University Press of Kansas, 2002. Excellent retelling of the My Lai story through the prism of law that provides new perspectives on the Vietnam War.
  • Best, Geoffrey. War and Law Since 1945. Oxford, England: Clarendon Press, 1997. Discusses the relationship between war and international law.
  • Edwards, William C., and Edward Steers, eds. The Lincoln Assassination: The Evidence. Champaign: University of Illinois Press, 2009. One of the premier publications in the field of Lincoln assassination studies. A gold mine of original records and primary sources.
  • Jinks, Derek. The Rule of War: The Geneva Conventions in the Age of Terror. New York: Oxford University Press, 2008. A guide to the Geneva Conventions for the general reader.
  • Jones, Adam. Genocide, War Crimes, and the West. London: Zed Books, 2004. Explores the involvement of the United States and other liberal democracies in actions that are conventionally depicted as the exclusive province of totalitarian and authoritarian regimes.
  • Madariaga, Isabel de. Ivan the Terrible. New Haven, Conn.: Yale University Press, 2005. A definitive, thorough biography that explores the complex character of Ivan IV.
  • Maga, Tim. Judgment at Tokyo: The Japanese War Crimes Trials. Lexington: University Press of Kentucky, 2001. Discusses the important precedents set by the Tokyo trials and establishes what constitutes war crimes and how they can be prosecuted.
  • Meron, Theodor. War Crimes Law Comes of Age. New York: Oxford University Press, 1998. A collection of essays in which the world’s authority on issues of international humanitarian law contemplates topics ranging from Renaissance war ordinances to the Nuremberg trials to war crimes in the Balkans, Nicaragua, and the current world.
  • Purdue, Theda, and Michael D. Green, eds. The Cherokee Removal: A Brief History with Documents. 2d ed. New York: Bedford/St. Martin’s, 2004. A multifaceted, succinct account of this complicated story in American history.
  • Strasser, Steven, ed. The Abu Ghraib Investigations: The Official Independent Panel and Pentagon Reports on the Shocking Prisoner Abuse in Iraq. New York: Public Affairs, 2004. A judicious account of Abu Ghraib and the Geneva Conventions.

Collaboration in War

Genocide

Mercenaries

Peace Movements and Conscientious Objection to War

Prisoners and War

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