DXTR -- Having thought about this discussion for some time, I'm still not sure if there is a misunderstanding of the use of terms like "war crime," or whether there is a major conceptual difference involved. For that reason, I'd like to get some of the discussion points clarified.
Your original proposition was:
If a rape or mishandling/murder of a civilian during an occupation was committed by the armed forces, then it is still a warcrime, unless the territory was legally annexed by the occupying power and by that it would make it a civilian criminal murder/mistreatment case. All actions that are in violation of the Laws of War that be the Geneva or Hague conventions are warcrimes, no matter if it was government sanctioned or not. Yes murders happened during the World Wars but that does not make it any more less a crime done during war and therefore a war crime
As a general statement, I agree with the second of the three sentences in this proposition:
All actions that are in violation of the Laws of War that be the Geneva or Hague conventions are warcrimes, no matter if it was government sanctioned or not.
The first sentence in the quote:
If a rape or mishandling/murder of a civilian during an occupation was committed by the armed forces, then it is still a warcrime, unless the territory was legally annexed by the occupying power and by that it would make it a civilian criminal murder/mistreatment case.
is true to some extent, though it is overly broad in my opinion. The "some extent" to which the statement is true turns on the intended meanings of the expressions "occupation," "committed by the armed forces," "legally annexed," and "civilian criminal murder/mistreatment case."
The last sentence I believe is overly broad and inaccurate to the point of being misleading:
Yes murders happened during the World Wars but that does not make it any more less a crime done during war and therefore a war crime
The term war crime has been used in several distinctly different ways:
(1) A violation of the laws of land warfare, as set forth in various international treaties;
(2) In addition to this, a violation of the customs (sometimes referred to as usages) of land warfare;
(3) In addition to these, a violation of other international conventions or customs regarding the onset and conduct of hostilities, and/or the treatment of civilian populations;
(4) A crime committed by or against a member of the armed forces of a country
(5) A crime committed during the course of hostilities;
(6) A crime committed during time of war;
(7) An epithet.
In addition, the laws and customs of war have changed over the years, so it is important to have a time frame for many of the discussions. For example, the Geneva Convention of 1949 substantially added to the acts constituting war crimes, but the enlarged provisions of that convention are anachronistic in a WWII setting.
As I result, I usually ask for posters to be specific when they use the term "war crime," so that the subject matter of the discussion is clear to the participants, and no one has to guess as to what was meant.
In your proposition:
If a rape or mishandling/murder of a civilian during an occupation was committed by the armed forces, then it is still a warcrime, unless the territory was legally annexed by the occupying power and by that it would make it a civilian criminal murder/mistreatment case. All actions that are in violation of the Laws of War that be the Geneva or Hague conventions are warcrimes, no matter if it was government sanctioned or not. Yes murders happened during the World Wars but that does not make it any more less a crime done during war and therefore a war crime
I can't figure out in what sense you are using the word "war crime." The first sentence suggests you mean (1), (2), (3), (4) or (5), or some combination of them. The second sentence is restricted to (1), but is unclear as to which Geneva Convention (1929 or 1949) is meant. The breadth of the third sentence suggests you mean (6).
You went on to say, in response to Andy's question:
Individual soldiers who commit crimes that violates any of the articles under section III can be brought to justice for war crimes. If the authorities or military high command have either sanctioned those crimes or have not taken the proper precautions to prevent such violations can then be brought to justice for war crimes too.
The second sentence here is certainly true. The first, however, is more difficult. The context of your post indicates that you are discussing war crimes as a general subject. The first sentence is restricted to violations of Section III of the 1907 Hague IV Convention -- "Military Authority over the Territory of a Hostile State." The section is applicable when "The authority of the legitimate power [has] in fact passed into the hands of the occupant." The prohibitions are directed, not against individual criminals, but against "the occupant," "the belligerent," and "the occupying power" (my emphases):
Art. 42.
Territory is considered occupied when it is actually placed under the authority of the hostile army.
The occupation extends only to the territory where such authority has been established and can be exercised.
Art. 43.
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
Art. 44.
A belligerent is forbidden to force the inhabitants of territory occupied by it to furnish information about the army of the other belligerent, or about its means of defense.
Art. 45.
It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power.
Art. 46.
Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.
Private property cannot be confiscated.
Art. 47.
Pillage is formally forbidden.
Art. 48.
If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of the State, he shall do so, as far as is possible, in accordance with the rules of assessment and incidence in force, and shall in consequence be bound to defray the expenses of the administration of the occupied territory to the same extent as the legitimate Government was so bound.
Art. 49.
If, in addition to the taxes mentioned in the above article, the occupant levies other money contributions in the occupied territory, this shall only be for the needs of the army or of the administration of the territory in question.
Art. 50.
No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.
Art. 51.
No contribution shall be collected except under a written order, and on the responsibility of a commander-in-chief.
The collection of the said contribution shall only be effected as far as possible in accordance with the rules of assessment and incidence of the taxes in force.
For every contribution a receipt shall be given to the contributors.
Art. 52.
Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country.
Such requisitions and services shall only be demanded on the authority of the commander in the locality occupied.
Contributions in kind shall as far as possible be paid for in cash; if not, a receipt shall be given and the payment of the amount due shall be made as soon as possible.
Art. 53.
An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations.
All appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and, generally, all kinds of munitions of war, may be seized, even if they belong to private individuals, but must be restored and compensation fixed when peace is made.
Art. 54.
Submarine cables connecting an occupied territory with a neutral territory shall not be seized or destroyed except in the case of absolute necessity. They must likewise be restored and compensation fixed when peace is made.
Art. 55. The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.
Art. 56.
The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property.
All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.
For this reason, and under circumstances restricted to the application of this section, an individual can be prosecuted for a war crime only to the extent that he was acting as an agent of "the occupant," "the belligerent," and/or "the occupying power," and only where he violated one of the prohibitions detailed in articles 42-56. The limited applicability of Section III to ordinary ("garden-variety") crimes can be seen from the language of Article 43:
Art. 43.
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
This section contemplates the enforcement by the occupant of its own articles of war, martial law and any laws enacted by the occupying country ("all the measures in his power to restore, and ensure, as far as possible, public order and safety") and the administration of applicable local laws ("respecting, unless absolutely prevented, the laws in force in the country"). There is no suggestion in Section III that a violation of these provisions (the articles of war of the occupying army, the laws of the occupying authority and applicable local law) would automatically constitute a "war crime," nor is there any suggestion that an occupying authority should prosecute individual crimes as violations of the articles contained in Section III.
For example, if a German soldier in the army of occupation in France killed his fellow soldier serving in the German army, it would be a violation of that army's articles of war, or of local law, but it is not necessarily a violation of the laws and customs of war, or of the 1907 Hague IV Convention. If a civilian in the occupied area of France killed another civilian, the crime may be in violation of local law or the laws of the German occupying power, but it is not necessarily a violation of the laws and customs of war, or of the 1907 Hague IV Convention. Consequently, for there to be a "war crime," some other element is necessary.
The same is true in circumstances not amounting to a formal occupation under Section III, as where an American serviceman stationed in Great Britain in 1944 kills a British civilian, or the British civilian kills him. The fact that the crime occurred during a war, or during the course of hostilities, or involved a member of the armed forces does not make the act a war crime. Consequently I don't think that this sentence is accurate:
Yes murders happened during the World Wars but that does not make it any more less a crime done during war and therefore a war crime
The terms "war crime" and a "crime done during war" overlap, but they don't have identical meanings.
The original circumstances of the discussion involved the alleged rape and the actual murder of a member of the French resistance by members of the German armed forces, during the course of the German occupation of France. My fellow moderator Andy H asked if this was a war crime, or just an ordinary crime, and I said that there wasn't enough information to tell, because we didn't know whether the crime(s) were committed by the soldiers in an individual criminal capacity or as agents of the German occupation authorities. I think this distinction is apt.
The act of rape and the act of murder are crimes. The question is whether, under the circumstances, the acts involving Marianne Cohn were war crimes.
(To be continued)