Since I have been engaged in other academic endeavours I was positively surprised that not just David T. and I were discussing this matter.
First of all walterkaschner wrote:
I'm tentatively leaning toward the view which seems to have prevailed in our much earlier history, which was that when civilian courts are open and available all acts which constitute "common crimes" should be tried by those courts rather that by military courts martial, commissions or other military tribunals, leaving to the latter only those infractions which are purely of a military nature or for the trial of which no civilian court is available
What is the distinction between a war crimes tribunal and a civilian court? On the surface the former addresses international law in case of violations of the laws of war while the latter addresses national law. I do believe that a major distinction should be made between these two. But since international law has been adapted by national law it is hard to make the distinction. War crimes tribunals have a history of neglecting to take into account defences such as manslaughter. While civilian courts tend to accept it.
The problem is not so much whether national courts could try war crimes, they can if they aplly international law. No need for a war crimes tribunal of an international scope.
But we have to issues up for debate here:
1. Is a crime done by a soldier in a time of war against a member of a hostile nation a war crime or lesser crime, garden variety crime?
2. can a soldier of the lowest rank commit a war crime if he does not follow an order?
As you all know I have argued that a crime done by a soldier in a situation of war is a warcrime.
Lets address the first issue: Is a crime done by a soldier in a time of war against a member of a hostile nation a war crime or lesser crime, garden variety crime?
First of all what is a war crime?
The IMT (International Military Tribunal) in its London charter defined a war crime as
(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
So generally speaking murder, rape or other garden variety crimes can apply in theory. But if one rejects these rulings as being post-facto and that the Hague regulations could not be applied to the rape/murder in France one must look at the so called Martense Clause in the Hague convention IV of 1907, CONVENTION RESPECTING THE LAWS AND CUSTOMS OF WAR ON LAND points to that inhabitants i.e. civilians are protected by the laws of war:
On the other hand, the High Contracting Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders
Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations [international law], as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.
The wording of the Martense clause was put in, in order to prevent crimes to be committed that were not specified in the regulations. Therefore the IMT would eventually be able to declare that murder or rape was in violation of ‘from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience’. Therefore the case of the rape/murder if in its historical context does not only rely on the specific wording of the Hague convention but also on the declarations and rulings that was achieved at IMT. The IMT ruled on cases where the alleged war criminals had not committed a crime in accordance with the specific wordings of the either the Hague or the Geneva conventions at the time of the crime. But in accordance with the Martense clause it was possible to indict a person of a crime not specified in the Laws of War. So as a general rule the definition war crime as defined by the IMT did apply at the time of the murder/rape case.
Was it a time of war then?
The Hague 1907 declaration does not specify when a war is in place. One must remember that using the term war at this time only applied to war between states. The high contracting parties was very keen on preventing colonial uprising to be categorised as war, and therefore to invoke the rights of say POW’s to the colonial insurgents. But the Hague convention does however point to a situation when a territory is occupied:
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.
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.
However during the trials after World War II several indicted defendants claimed that international law did not apply in the occupied territories as they were now annexed territories. In other words could the laws of war apply in the part of France that was occupied (excluding Vichy)?
Subjugation is, as a rule, a mode of acquiring, the entire enemy territory. But it is possible for a state to conquer and annex a part of enemy territory, either when the war ends by a treaty of peace in which the vanquished state, without ceding the conquered territory, submits silently to the annexation, or by simple cessation of hostilities.
It must however, be emphasised, that such a mode of acquiring a part of enemy territory is totally different from forcibly taking possession thereof during the continuance of war. Such a conquest, although the conqueror may intend to keep the conquered territory and therefore to annex it, does not confer a title so long as the war has not terminated either through a simple cessation of hostilities or by a treaty of peace. Therefore a practice which sometimes prevails, of annexing during a war a conquered part of enemy territory , whether of the whole or of part, confers a title only after a firmly established conquest, and so long as war continues conquest is not formally established. ( Lauterpacht, Hersh & Oppenheim L. International Law a treatise 1952 p. 570-71
The IMT also ruled that
In the opinion of the tribunal the territory occupied and annexed by Germany after September 1939 never became part of Germany […]
We have expressed the opinion that the purported annexation of territory in the east which occurred in the course of war and while opposing armies where still in the field was invalid and that in the point of law such territory never became part of the Reich but merely remained in German military control under belligerent occupancy.
(Source: The Justice Case: http://www.mazal.org/archive/nmt/03/NMT03-T1027.htm
The Hague Regulations do not become inapplicable because the German Reich “annexed” or “incorporated” parts of the occupied territory into Germany, as there were, within the holding of the IMT which we follow here, armies in the field attempting to restore the occupied countries to their true owners. We adopt this view. It will therefore become unnecessary, in considering the alleged acts of spoliation in Poland and Alsace-Lorraine, to consider this distinction which has been urged by the defense
(Source: the Ministries case http://www.mazal.org/archive/nmt/08/NMT08-T1137.htm
With the basis in the above rulings and Lauterpacht and Oppenheims statement I would argue that little doubt exist as to whether the laws of war is applicable in the rape case in France since in the specific case of France an army existed in the field – namely the Free French under De Gaulle. Therefore the indicted could not claim that only German law was valid in France. International law applied. Therefore one must conclude that a murder, rape in France could in accordance with the laws of war be tried as a war crime.
However what about national law vs. international law? I have argued before that International law is superior to national law. But lets have a look at the nature of international law.
Before the middle of the 19th century, relations between states were regulated by bi-lateral agreements. States concluded treaties with individual states. No international body of law existed and neither was it universal. International affairs was ‘anarchic’ if one accepts the ‘realist’ view of political theory. That is no superiority existed that had the force as well as the legitimacy to regulate the interstate affairs. However due to increased public sentiment as well as an increased development in armaments it was decided to regulate the usage and production of certain weapons that was viewed as inhuman. From this regulation rose a set of laws known commonly as ‘the laws of war’. In order to reduce the suffering, as well as the unregulated spiralling towards all out war in a time when war could lay to waste a state, a number of states decided to agree on a common law that could be applied in a time of war, since no law existed between states. These international laws therefore regulated the relations between states, as no law existed prior to this.
War, in its 1945 version, was regarded primarily as a war between states, therefore in a situation of war, national laws could not be applied since states had agreed to apply international laws. If it would be the other way around as I argued above, German war criminals could argue that only German laws applied. However a country does not need to set up an international war crimes tribunal to try his own violators of the laws of war.
While researching for this discussion I came to realise that the term ‘war criminal’ and ‘war crime’ is a word that apparently has several different semantic meanings.
The US. Army Field Manual of 1956 list:
The term "war crime" is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime. ]My emphasis]
So by following that argument one must conclude that a war criminal is any person or persons, military or civilian that has violated the laws of war.
However the Field Manual is a little bit ambiguous when it comes to a person charged with war crimes
b. Persons Charged With War Crimes. The United States normally punishes war crimes as such only if they are committed by enemy nationals or by persons serving the interests of the enemy State. Violations of the law of war committed by persons subject to the military law of the United States will usually constitute violations of the Uniform Code of Military Justice and, if so, will be prosecuted under that Code. Violations of the law of war committed within the United States by other persons will usually constitute violations of federal or state criminal law and preferably will be prosecuted under such law (see pars. 505 and 506). Commanding officers of United States troops must insure that war crimes committed by members of their forces against enemy personnel are promptly and adequately punished. [my emphasis]
So the US army distinguishes between a foreign national and a US. National when it comes to war crimes. Does it then imply that a US national that violates the laws of war can nor become a war criminal? Apparently simply by being a US. National he can not commit a war crime…. However since the laws of has been adopted by the US in its Uniform Code of Military Justice the US. soldier that violates the laws of war is not tried in accordance just with national law, he is tried in accordance with international law :
e. Law Applied. As the international law of war is part of the law of the land in the United States, enemy personnel charged with war crimes are tried directly under international law without recourse to the statutes of the United States. However, directives declaratory of international law may be promulgated to assist such tribunals in the performance of their function. (See pars. 506 and 507.)
But it does however leave us with a bit of a problem, because I originally claimed that a war crime is a violation of the laws of war, but according to the US. Army Field Manual only foreign nationals can become war criminals in the US. But before I lay down my sword and accept David T.’s claim, we must return to the issue of national vs. international law. I do believe the reason why the US uses the term ‘war criminal’ only to be applied to foreign nationals is due to the difference between international and national law. When US military tribunals try foreigners for war crimes they need to refer it to the international law only, since in a time of war international law is applied since they are foreigners caught in an international situation. However when US. Citizens commit war crimes, it is labelled as just ‘violations of the laws of war’ I would argue that it is still a war crime, but in juridical terms they are US nationals being tried by US courts and therefore they enjoy national rights in accordance with US law. If the US. would try them entirely in accordance with international law they would violate their right as a US. Citizen to those rights that a US. Citizenship honours its citizens with. However since US. Uniform Code of Military Justice has adopted international law, the soldiers who violated the laws of war are not tried in accordance with national law but in accordance with international law, therefore they would be tried in a murder case as a violation of the laws of war and not US. federal law. So I would argue that my original claim still stands, while David T.’s original claim also has some merit too. I must concede that a national military code, when applying international law of course, also applies part of national law such as the rights of the accused.
Let us then return to the next issue the case of the principal.
David T. wrote
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):
Of course David T. is not arguing whether an individual can be tried for crimes committed by a state. But his original claim was that a war crime committed by a soldier of private rank needed to be committed in accordance with an order, for it to be ‘bumped’ up to a war crime. AS I have argued before International law is superior to national law when it comes to international situations such as a war. A soldier, although committing a crime ‘on his own behest’ is in the uniform and service and by that under the responsibility of his commander and the state in whose uniform he serves. When you are a soldier you are serving in accordance with those rules and laws that your country has signed internationally. A soldier in uniform in a war, that is an international situation, can not commit a crime and then have it reduced to national offence when it is committed in an international situation. It would violate the whole essence of international law. And a soldier no matter if he was under order or not is still under international law when serving in a war.
Following their definition of a war crime the allied defined a person responsible for a war crime as:
Paragraph 1 section b
(b) War Crimes. Atrocities or offenses against persons or property constituting violations of the laws or customs of war, including but not limited to, murder, ill treatment or deportation to slave labour or for any other purpose, of civilian population from occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.
2. Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime or (f) with reference to paragraph 1 (a) if he held a high political, civil or military (including General Staff) position in Germany or in one of its Allies, co-belligerents or satellites or held high position in the financial, industrial or economic life of any such country.
(Source: CONTROL COUNCIL Law No. 10 PUNISHMENT OF PERSONS GUILTY OF WAR CRIMES, CRIMES AGAINST PEACE AND AGAINST HUMANITY http://www.yale.edu/lawweb/avalon/imt/imt10.htm
So in the allied definition ANY PERSON WITHOUT REGARD TO THE CAPACITY IN WHICH HE ACTED could commit a war crime as long as the act falls into that category of war crimes. The above definition does not point to an interpretation that a war crime follows an order or national policy, but just that it is ‘including but not limited to, murder […] not justified by military necessity. (The wording ‘including but not limited to’ of course points to that the list of crimes is not an exhaustive list.)
Does this mean that it is only limited to accomplishes. - that is a soldier who follows an order or national policy? The above order makes a distinction between ‘a principal or was an accessory to the commission of any such crime or ordered or abetted the same’ So if there is a difference between a ‘principal’ and someone who ordered the crime and someone who abetted the crime then it must imply that the definition refers to a person (i.e. soldier) who on his own initiative murderer an individual, as well as an officer who gave the order. The person who was an accessory to the crime, must then be the soldier who carried out the order. So we have a situation where three different individuals can commit a crime 1. ‘the principal’ i.e. soldier committing a crime on his own behest, (and please notice the use of ‘or’ in the text so as to imply that the two individuals are different): 2. the accessory that is the one who on order committed a crime as well as 3. the officer who gave the order.
So in conclusion the ruling as well as the legal documents deployed in the course of the IMT after World War II does indicate that a soldier who commits a crime on his own behest shall be tried in accordance with the laws of war.
In regards to the debate on Scmid and Yamamoto I will return to discuss these cases
when I have a little bit more time.