WAR CRIME

offense against the law of war as laid down by international customary law and certain international treaties. The term war crime has been difficult to define, but after World War II three categories against the law of nations became generally accepted as such. The first, "crimes against peace," involves preparing for or initiating a war of aggression; the second, "war crimes" (also called "conventional war crimes"), includes murder, ill treatment, or deportation of the civilian population of occupied territory; and the third, "crimes against humanity," includes political, racial, or religious persecution against any civilian population, either before or during a war, and is understood to include genocide. Throughout history individuals have been tried for what are known as conventional war crimes, violations of the laws or customs of war. The 1863 Instructions for the Government of Armies in the Field, issued by U.S. President Abraham Lincoln, held prisoners of war to be answerable for offenses previously committed against the captor's army or its people. The preliminary peace conference after World War I created a commission charged with inquiring into "the responsibilities relating to the war." The commission's report recommended war-crimes trials before the victors' national courts and, when appropriate, before an inter-Allied high tribunal. Trials were to be held for violations of the laws or customs of war and for crimes against humanity. Failure to prevent or end violations of the laws or customs of war was itself to be a war crime. The commission further advised "special measures" for dealing with those who instigated the war. The Treaty of Versailles called for the trial of the former German kaiser William II by international tribunal, but The Netherlands refused to extradite him from its country, and he was never tried. Also ineffective was the treaty's provision for military tribunals for persons accused of violating the laws or customs of war, because there was strong German resistance to surrendering persons accused of such crimes. The Allies ultimately agreed that the cases could be tried by the supreme court of Leipzig, but most of those tried were acquitted despite strong evidence of their guilt. Throughout World War II the Allies cited Nazi atrocities and announced their intention to punish those guilty of war crimes. The Moscow Declaration of 1943, issued by the United States, Great Britain, and the Soviet Union, and the Potsdam Declaration of 1945, issued by the United States, Great Britain, and China (and later adhered to by the Soviet Union), dealt with punishment to be meted out to Germany and to Japan, respectively. At the war's conclusion in 1945, representatives of the United States, the United Kingdom, the Soviet Union, and the provisional government of France signed the London Agreement, which provided for an international military tribunal to try the major Axis war criminals whose offenses were not specifically located. This agreement later won the support of 19 other governments. Its charter listed the three categories of crimes explained heretofore involving individual responsibility and specified (1) that a defendant's position as head of state or as a government official would not free him from responsibility or mitigate his punishment; (2) that acting on government order would not free the defendant from responsibility but could be considered in mitigation of punishment; and (3) that the tribunal could declare a group to have been criminal in character, thus enabling courts of any signatory state to try individuals for their membership. Provisions to ensure a fair trial were also included in the charter. Twenty-four Nazi leaders were tried at the tribunal's first session in Berlin on Oct. 18, 1945, and subsequent sessions took place in Nrnberg, Ger. The trial, conducted in four languages and lasting more than 10 months, concluded on Oct. 1, 1946. Of the 22 individual defendants (one leader committed suicide and a second was held physically unable to be tried), 3 were acquitted, 12 sentenced to hang, 3 sentenced to life imprisonment, and 4 sentenced to prison terms that ranged from 10 to 20 years. (See Nrnberg trials.) The charter for the International Military Tribunals for the Far East issued by U.S. General of the Army Douglas MacArthur closely followed the one drafted in London to govern the Nazi leaders' trials; but it allowed that the official position held by a defendant at the time of his alleged offense and his acting on government orders could be considered in mitigation of punishment. The trials were conducted only in English and Japanese. Eleven nations were represented at the trial in Tokyo on May 3, 1946, which ended more than two years later. Of the 25 Japanese defendants, 7 were sentenced to hang, 16 to life imprisonment, and 2 to lesser terms. The post-World War II program for the punishment of war criminals was criticized from its outset, most often for allowing trials for acts that had not been criminal when committed. The Nrnberg tribunal, however, cited the Kellogg-Briand Pact (Pact of Paris), ratified in 1928 by Germany and nearly all other states, which established a law making aggressive war illegal and making its initiation an individual crime. The principle that military necessity or a superior's orders is not an acceptable defense for war crimes, also controversial at the time, is now strongly supported by many nations. The trial of Adolf Eichmann in Israel in 1961 raised the issue of jurisdiction. Although Israel did not exist as a state during World War II and therefore could not claim to have been a victim of Eichmann's crimes, the court argued that Israel represented the Jewish victims of Nazi atrocities and that the gravity and broad geographic distribution of the Holocaust allowed any state that held such a criminal in custody to try him. Several other states have abolished their statutory limitations on the prosecution of crimes against humanity; this allowed a French court, for example, to convict the Nazi Klaus Barbie in 1987 of crimes committed more than 40 years previously. The four Geneva Conventions of 1949 made certain acts committed against war victims punishable, but the actual trials for these acts were left to the individual countries to arrange. National conflicts such as civil wars and guerrilla wars, as well as wars of national liberation, were made subject to Geneva Convention provisions by the Protocols of 1977.