Ordinary Crimes/War Crimes

walterkaschner · Post by **walterkaschner** » 04 Jul 2005 05:19

Returning after several days vacation from the Houston Hothouse I read this thread with great interest, particularly David Thompson's theory that the distinction in the given case between a "war crime" and a "garden variety crime" lies in whether or not the perpetrator was acting as an agent for the occupying power.

As I have argued in the post above, Section III of the 1907 Hague IV Convention is limited to persons acting as agents of "the occupant," "the belligerent," and/or "the occupying power." The 1929 Geneva Convention on the treatment of POWs is inapplicable to these circumstances, because it doesn't deal with the issue. Those treaties are the only ones which were applicable in 1944.

It might be argued that the rape and murder is a violation of one of the customs and usages of war, but that has yet to be proven. Furthermore, in such cases Article 43, Section III of the 1907 Hague IV Convention expresses a preference for application of the articles of war of the occupying country, the martial law or occupation decrees of the occupation authorities, or local law (my emphases):

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.
For that reason, if the crime was committed by a group of soldiers acting as individuals and not as the agents of the occupying armed forces, the act is not treated as a war crime by the 1907 Hague IV Convention, but instead as a "garden variety" crime, to be punished by the occupation authorities or local law.

However, if the group of soldiers was acting as the agent of the occupying power in committing the rape and murder, that would be a war crime. The reason is that the rape and murder violate the obligations of the occupying power under Section III, Articles 43 and 46.

At first blush the "acting as agent" distinction struck me as an apt and appealling test, but as I reflect on it I'm troubled by the difficulties in its application in a given situation.

Generally speaking, an "agent" is one who has been granted the legal authority to act on behalf of another - his "principal". But not every act of the agent is within the scope of his agency - i.e. the authority granted him by his principal. But although the authority of a member of a country's armed services is extended to engage on behalf of his country in any number of acts for which, as a civilian, he could be subjected to criminal prosecution, his authority is not without limitations. Most, if not all, civilized counties provide their service men and women with manuals and instructions as to the laws, customs and usages of warfare, including the treatment of POWs and civilians, as well as the country's own standards of permissable and impermissable behavior, and make it abundantly clear that they are expected to comply. But if a soldier exceeds the limitations so imposed upon his "agency" and orders or engages in unauthorized rape, murder or mayhem does he thereby necessarily escape trial and conviction as a war criminal? Is he a war criminal only if he was acting under orders or within the authority granted by his superiors? Perhaps so, but it does seem to me that the line can become somewhat blurred in a given case.

Take the outrage committed by elements of the SS Das Reich Division at Oradour-sur-Glane on June 10, 1944 under the command of Gruppenführer Adolf Diekmann. With but a single adult and two children survivors all others in the village - some 650 men, women and children - were murdered, and the buildings, including the village church, put to the torch. War crime? Apparently Diekmann's superior, Obergruppenführer Sylvester Stadler, thought it might be, as he was reportedly extremely upset at the news and instituted an investigation seeking grounds for courts-martial proceedings against Diekmann. Although Diekmannn was not relieved of his command, the Divisional Military Court initiated its investigation around June 20th, but the proceedings were rendered moot by Diekmann's death in action on June 29.

Was Diekmann acting within the scope of his authority as an "agent" of the Third Reich? Generalfeldmarschall Hugo Sperle, in command of the German Forces in the West, had issued an Order the previous March to the effect that attacks on German troops by French Resistance forces must be dealt with by immediate retaliation, but this in no wise authorized the atrocity at Oradour-sur-Glane:

1) We (the German armed forces) are not in the occupied western territories to allow our troops to be shot at and abducted by saboteurs who go unpunished. The countermeasures taken up to now, despite undenied successes, will not alter the situation substantially if immediate self protection is not undertaken in instances where we are attacked or presented with insubordination

2) If troops are attacked in any manner, their commander is obliged to take his own countermeasures immediately, these include:

1. There is to be an immediate return of fire. If innocent persons are hit this is regrettable but entirely the fault of the terrorists.
2. The surroundings of any such incident are to be sealed off immediately and all the civilians in the locality, regardless of rank and person are to be taken into custody.
3. Houses from which shots have been fired are to be burnt down on the spot.

A report will not be made until these or similar immediate steps have been taken.

4) In the judgement of the actions of troop commanders, the decisiveness and speed with which they act are to be regarded as the primary aspects. A slack and indecisive troop commander deserves to be severely punished because he endangers the lives of the troops under his command and produces a lack of respect for the German armed forces.

Measures that are regarded subsequently as too severe, cannot in view of the present situation, provide reason for punishment".

Source: http://www.oradour.info/appendix/sperrle.htm

On June 5, 1944 General Heinz Lammerding, commander of the Das Reich Division, had drafted a Memo to his Corps Commander recommending that 5,000 male Resistant suspects be rounded up and deported to Germany, and that 3 "terrorists" be hanged for every German wounded and 10 hanged for every German killed, but indicated that if this were done the area should be pacified. Nothing was suggested about reprisals against women and children. This was forwarded on to Army Group G with a favorable recommendation, and was approved by the Wehrmacht on June 7. Source: Max Hastings, Das Reich: The March of the 2nd SS Panzer Division Through France (Holt, Reihardt and Winston, 1982) at 81-2. [I realize that Hastings may in certain respects be an unreliable source - he calls Adolf Diekmann "Otto Dickmann", but I have no reason to doubt his accuracy here as he cites Army Group G's own War Diary as his source.] But it seems to me that this too is far from authorizing the type of atrocity committed at Oradour-sur-Glane.

It seems tolerably clear to me that although Diekmann might, as a member of its armed forces, be considered an "agent" of the Third Reich, he was not acting within the scope of his "agency" in ordering the outrage at Oradour-sur-Glenn.

Of course, under the Common Law, the unauthorized action of an agent - outside the scope of the agency - may nonetheless render his principal responsible if the principal (a) implicitly or explicitly ratifies the agent's action, or (a) acquiesces in such action and accepts any benefit deriving therefrom. And I believe - but can not find a source for it - that the Wehrmacht later dismissed the court martial investigation on the dual grounds that Diekmann's action was justified under the circumstances and that in any event his death rendered the proceeding moot. But in any event, ratification or acquiescense goes to the principal's responsibility for the act of his agent, and has no bearing on the agent's own responsibility. Thus it is difficult for me to see how the Wehrmacht's decision - even if deemed a ratification - could logically ipso facto turn what otherwise would seem to have been the "agent's" war crime into a "garden variety crime".

Although I have at the moment no substitute test to offer, it does seem to me that the legal concepts and consequences of the principal-agency relationship, which have their origin and usual application in commercial and civil contexts, may just not quite adapt to defining a war crime as such.

Other situations, such as the killing of the surrendered SS guards at Dachau and the My Lai massacre, give me equal pause in accepting the agency theory, although I frankly can not recall offhand sufficient detail of either to attempt an analysis.

Any further illumination friom any direction would be gratefully received.

Regards, Kaschner

David Thompson · Post by **David Thompson** » 04 Jul 2005 22:53

Walter -- You wrote:

Most, if not all, civilized counties provide their service men and women with manuals and instructions as to the laws, customs and usages of warfare, including the treatment of POWs and civilians, as well as the country's own standards of permissable and impermissable behavior, and make it abundantly clear that they are expected to comply. But if a soldier exceeds the limitations so imposed upon his "agency" and orders or engages in unauthorized rape, murder or mayhem does he thereby necessarily escape trial and conviction as a war criminal? Is he a war criminal only if he was acting under orders or within the authority granted by his superiors?

These questions go to the heart of the issue. Your first question was:

But if a soldier exceeds the limitations so imposed upon his "agency" and orders or engages in unauthorized rape, murder or mayhem does he thereby necessarily escape trial and conviction as a war criminal?

My answer to this question is no. I can see now that I was not as clear as I should have been when I used the term "agent." The point I wanted to make was that, in the case of soldiers accused of a war crime, there has to be some nexus between the common law crime and the laws and customs of war -- in other words that the soldier has to have committed the crime while acting in some military capacity, whether the act is within or outside the scope of his military authority. I don't think that the imputed liability of a commander or nation for the acts of criminal subordinates is a necessary prerequisite for a war crime.

Your second question was:

Is he a war criminal only if he was acting under orders or within the authority granted by his superiors?

I think the answer to this is also no. As far as I'm concerned, the acts of Diekmann, Calley, and the soldiery of the US 45th Infantry Division at Dachau were war crimes. The issue I'm trying to address is whether a distinction can or should be drawn between a war crime and a common law crime, committed by an individual who happens to wears a military uniform. Rape, murder or mayhem are crimes, and under certain circumstances, can also be war crimes. But what are the circumstances under which a common law crime becomes a war crime as well? If such a distinction can and should be drawn, what are the characteristics which distinguish one from the other? I think that such a distinction can and should be drawn, but I've never seen an essay, treatise or judgment which dealt with that question directly -- probably because the "garden variety" common law crimes are almost always, if not always, charged as violations of the articles of war rather than as war crimes. I can't say I'm having much success trying to draw the line either.

walterkaschner · Post by **walterkaschner** » 06 Jul 2005 00:10

David Thompson wrote:

The issue I'm trying to address is whether a distinction can or should be drawn between a war crime and a common law crime, committed by an individual who happens to wears a military uniform. Rape, murder or mayhem are crimes, and under certain circumstances, can also be war crimes. But what are the circumstances under which a common law crime becomes a war crime as well? If such a distinction can and should be drawn, what are the characteristics which distinguish one from the other? I think that such a distinction can and should be drawn, but I've never seen an essay, treatise or judgment which dealt with that question directly -- probably because the "garden variety" common law crimes are almost always, if not always, charged as violations of the articles of war rather than as war crimes. I can't say I'm having much success trying to draw the line either.

It seems to me that a distiction should be drawn between a "war crime" (by which I mean an offense against the law of nations or the laws of war) and a "common crime" (by which latter I mean an act of similar nature but which would be triable as a crime in a civil as opposed to military court) if for no other reason than that the applicable forum and trial procedures from start to finish are usually far different for one than the other. I am no student of the subject, but at least in the US the charge of having committed an act denoted as a "war crime submits the accused to a very different judicial régime - and one with substantially less procedural safeguards - than had the charge been brought as a common crime.

Take the case of Major Henry Wirz, the Commander of the Confederate Prison Camp for Union POWs at Andersonville, Georgia. In August of 1865 Wirz was tried for 2 charges of war crimes in Washington D.C. by a Military Commision consisting of 4 Major generals, 2 Brigadier Generals and two Colonels, all officers of the Union Army. The first charge was for having conspired with Jefferson Davis and other high ranking Confederates "to impair the health and destroy the lives" of Union Prisoners of war. The second was for personally murdering Union prisoners, and contained 13 separate specifications of murders he allegedly committed. The prosecution introduced some 150 witnesses; the defense was crippled by not being permitted to introduce any witness who had not been approved by the Tribunal, which eliminated much testimony which would have tended to exonerate the defendant. Wirz was found guilty of the first charge, although not a shred of evidence was introduced as to any conspiracy. On the second charge, he was found guilty of 11 of the 13 murders, although none of the alleged victims were ever identified by any witness and much of the testimony on these counts was highly suspect. The verdict was reviewed and approved by the USA Judge Advocate General and Wirz was executed by hanging in November 1865.

It is clear that war crimes, as offenses "against the law of nations" or "against the laws of war" may, under the US Constitution, be tried by Military Commission rather than by civil court. Ex parte Quirin, 317 U.S. 1 (1942). But had Wirz' alleged crimes not been categorized as war crimes he would have been entitled to the protection of a preliminary Grand Jury proceeding, been entitled to trial by a civil court (if tried, as he was, in Washington D.C., where the civil courts were open and functioning: Ex parte Milligan, 71 U.S. (4 Wall) 2 (1866) ) and by a civilian jury of his peers, with all the rights of a defendant to present evidence in his own defense, to an evaluation of guilt beyond a reasonable doubt, and to a right of appeal to the civil judiciary than the military Judge Advocate General, one of whose subordinates acted as prosecutor.

I don't know much about the difference in other countries, but I do know that in the case of the 1953 French trial against 67 members of the SS Das Reich Division for the atrocity committeed at Oradour-sur-Glane the offense was denominated a "war crime" and tried by a military rather than civil tribunal. The tribunal was, however, headed by a French civil magistrate and consisted of an additional 6 French Army officers,with the verdict being rendered soley by the judges rather than by the normal French civil jury which consists of a majority of laymen. Although the Tribunal had over 800 separate charges to consider it took only 32 hours to reach a verdict which was handed down on February 13, 1953. Of the 21 defendants present at trial (a mixture of German nationals and Alsatian conscripts into the SS) 20 were found guilty and two were sentenced to death, the rest to various prison terms. Of the 46 defendants who were tried in absentia (which is permitted under French law) all were found guilty and sentenced to death. Appeals were taken but I'm not aware of the route, as the French National Assembly within 6 days passed a law granting amnesty to the Alsatian conscripts and the case became no longer newsworthy. Most of the German nationals were apparently released soon after and the two receiving death sentences were pardoned. For details of the trial see:

http://www.oradour.info/ruined/chapter5.htm

But although I believe a clear distinction should be drawn, I'm in agreement with David that I don't believe that it has been in any definitive scholarly way and I'm not even sure that it can be. And if it can not, although I have by no means thought it through, 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. See Ex parte Milligan, supra. That, however, is not the law of the land in these United States, and it would seem in light of Ex parte Quirin, supra, that the distinction is left to the President's ipse dixit.

Regards, Kaschner

David Thompson · Post by **David Thompson** » 06 Jul 2005 01:36

Walter -- The considerations you've discussed are exactly what led me to try to draw the distinction clearly, between ordinary crimes and war crimes.

DXTR · Post by **DXTR** » 07 Jul 2005 11:29

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;

(source: http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm)

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:

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.

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]

(source: http://faculty.ed.umuc.edu/~nstanton/Ch8.htm)

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.)

(source: http://faculty.ed.umuc.edu/~nstanton/Ch8.htm)

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:

Article II
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.

Best regards.

David

JamesL · Post by **JamesL** » 14 Jul 2005 17:26

Let me throw in my 2 pence. Some of the comments below may be a bit difficult to understand / comprehend for non-Americans.

First off, I take exception to the comment that "International law is superior to national law when it comes to international situations such as a war." That is not the way it works in the USA.

From our viewpoint, all laws are subordinate to the US Constitution, even international conventions. The Constitution defines how treaties are handled. We simply cannot enter into international conventions that conflict with the Constitution.

We believe that the UN or other group of countries, or various conventions do not hold ultimate power over the USA or its citizens. However, when we enter into a convention in accordance with our laws, we will try to abide by its tenants. (I'm sure you also know that we can back out of an agreement if we so desire.)

Regarding military law. The Constitution says - “Section 8. The Congress shall have Power To ……. make Rules for the Government and Regulation of the land and naval Forces;” Those rules include the Uniform Code of Military Justice which covers crimes committed by military personnel. Therefore, the UCMJ is part of the Constitution. Treating our soldiers contrary to the UCMJ is contrary to the Constitution.

Additionally, the US Code (the code of all federal laws) is very specific when it comes to war crimes. See link.

http://straylight.law.cornell.edu/uscod ... -000-.html

Finally, the US Army definition of what is a war crime can be found at the US Army's Judge Advocate General School website. It says,

“E. War Crime. While war “legalizes” many acts that would be unlawful in peacetime, it does not “legalize” everything unlawful in peacetime. War is not a license to kill, but a limited authorization to kill. War crimes are simply those acts that are unlawful in peacetime, and remain unlawful in wartime.” – LAW OF WAR DESKBOOK (June 2000).

Some may be aware of America's dislike of the International Criminal Tribunal. We haven't accepted its application to US military personnel for reasons that could fill another thread.

David Thompson · Post by **David Thompson** » 14 Jul 2005 17:40

JamesL -- Thanks for the link to 18 USC 2441. I've been too swamped with work at the moment to give this thread the attention it deserves.

Here are some other links for the readers, relating to the current US Army field manuals on the subject:

FM 27-10 The Law of Land Warfare
http://www.globalsecurity.org/military/ ... index.html
This manual supersedes FM 27-10, 1 October 1940, including C 1, 15 November 1944.
Chapter 1 Basic Rules and Principles
http://www.globalsecurity.org/military/ ... 10/Ch1.htm
Chapter 8 Remedies for violation of international law; war crimes
http://www.globalsecurity.org/military/ ... 10/Ch8.htm

FM 27-1 Legal Guide for Commanders
http://www.globalsecurity.org/military/ ... index.html
This publication supersedes FM 27-1, 12 June 1987

FM 27-14 Legal Guide for Soldiers
http://www.globalsecurity.org/military/ ... index.html
This publication supersedes FM 27-14, 10 July 1986.

FM 27-100 Legal Support to Operations
http://www.globalsecurity.org/military/ ... index.html
This publication supersedes FM 27-100, 3 September 1991.

JamesL · Post by **JamesL** » 14 Jul 2005 19:54

One other link.

The US Code of Military Justice
http://www.au.af.mil/au/awc/awcgate/ucmj.htm

I wish I could see an English version of the equivalent German code of military conduct for its armed forces just prior to World War II. I believe the German code traces its written origins back to the 1700's.

JamesL · Post by **JamesL** » 14 Jul 2005 20:09

Another. Link to an article dealing with the Status of Forces Agreements that the US has with varioius countries.

Status of Forces Agreements
http://www.globalsecurity.org/military/ ... y/sofa.htm

"Status-of-forces agreements are not basing or access agreements. Rather, they define the legal status of U.S. personnel and property in the territory of another nation. The purpose of such an agreement is to set forth rights and responsibilities between the United States and the host government on such matters as criminal and civil jurisdiction, the wearing of the uniform, the carrying of arms, tax and customs relief, entry and exit of personnel and property, and resolving damage claims."

"When the offense is committed by Americans against Americans ("inter se" cases), and when the offense is committed by Americans in carrying out official duty. In these situations, the United States has primary jurisdiction over the accused American."

walterkaschner · Post by **walterkaschner** » 15 Jul 2005 03:17

Many thanks James L. and David Thompson for the several links to basic source material. I've not had the time to do more than skim it but look forward to a more thorough reading when I return from a trip out of the country.

In the meantime, one thought:

James L. provided the following:

Finally, the US Army definition of what is a war crime can be found at the US Army's Judge Advocate General School website. It says,

“E. War Crime. While war “legalizes” many acts that would be unlawful in peacetime, it does not “legalize” everything unlawful in peacetime. War is not a license to kill, but a limited authorization to kill. War crimes are simply those acts that are unlawful in peacetime, and remain unlawful in wartime.” – LAW OF WAR DESKBOOK (June 2000).

Frankly, although I agree with the first two sentences, I don't find the last sentence at all helpful. Just because a state of war exists, does murder in and of itself constitute a war crime? Even if committed by a civilian against another, with no connection in any way to the war itself? Or if committed by a member of the armed services in his own country, for personal reasons, out of uniform and off base? Is every offense against the UCMJ a war crime? This pronouncement just strikes me as hopelessly superficial and useless in practical application.

What if one of the German would be saboteurs in Ex parte Quirin had murdered a prostitute in the course of a purely sexual encounter? Clearly his entry into the US out of uniform and with an intent to commit sabotage is outlawed by the laws of war and punishable as a war crime, but would the murder also constitute a war crime? I'm still searching for a rationale that will staisfy a quest for a bullet proof distinction.

Regards, Kaschner

DXTR · Post by **DXTR** » 15 Jul 2005 13:02

James L wrote:

First off, I take exception to the comment that "International law is superior to national law when it comes to international situations such as a war." That is not the way it works in the USA.

From our viewpoint, all laws are subordinate to the US Constitution, even international conventions. The Constitution defines how treaties are handled. We simply cannot enter into international conventions that conflict with the Constitution.

We believe that the UN or other group of countries, or various conventions do not hold ultimate power over the USA or its citizens. However, when we enter into a convention in accordance with our laws, we will try to abide by its tenants. (I'm sure you also know that we can back out of an agreement if we so desire.)

At IMT a number of indicted war criminals claimed that the crimes they were tried for was not in violation of their national laws.
But the IMT ruled that

On the other hand the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law.

(Source: http://www.mazal.org/archive/imt/01/IMT01-T223.htm)

The argument that compliance with German law is a defense to the charge rests on a misconception of the basic theory which supports our entire proceedings. The Nuernberg Tribunals are not German courts. They are not enforcing German law. The charges are not based on violation by the defendants of German law. On the contrary, the jurisdiction of this Tribunal rests on international authority. It enforces the law as declared by the IMT Charter and C. C. Law 10, and within the limitations on the power conferred, it enforces international law as superior in authority to any German statute or decree. It is true, as defendants contend, that German courts under the Third Reich were required to follow German law (i.e., the expressed will of Hitler) even when it was contrary to international law. But no such limitation can be applied to this Tribunal. Here we have the paramount substantive law, plus a Tribunal authorized and required to apply it notwithstanding the inconsistent provisions of German local law. The very essence of the prosecution case is that the laws, the Hitlerian decrees and the Draconic, corrupt, and perverted Nazi judicial system themselves constituted the substance of war crimes and crimes against humanity and that participation in the enactment and enforcement of them amounts to complicity in crime. We have pointed out that governmental participation is a material element of the crime against humanity. Only when official organs of sovereignty participated in atrocities and persecutions did those crimes assume international proportions. It can scarcely be said that governmental participation, the proof of which is necessary for conviction, can also be a defense to the charge.

(source: 'The Justice Case' http://www.mazal.org/archive/nmt/03/NMT03-T0984.htm)

So It might well be that US. or Germany for that matter views/viewed national law as superior to international law, but when it comes down to a situation where an act is in violation of international law but not national law, international law in an international court would be superior to national law. And since the US. have adopted the bulk of the laws of war except The 1977 geneva protocols most of the violations of international law would also be in violation of national law.

in regards to walterkaschner:

What if one of the German would be saboteurs in Ex parte Quirin had murdered a prostitute in the course of a purely sexual encounter? Clearly his entry into the US out of uniform and with an intent to commit sabotage is outlawed by the laws of war and punishable as a war crime, but would the murder also constitute a war crime? I'm still searching for a rationale that will staisfy a quest for a bullet proof distinction

The saboteur case is a bit tricky.

Levie writes:

Thus while there is a widespread belief that espionage and treason are violations of the laws and customs of war and are, therefore, war crimes, this is not so. International law does not forbid espionage and treason; national law do. [...] in the so-called saboteurs case, in so far as the accused intended to spy, they were subejct to trial for that specific offense under the laws of the United States, but not for the commision of a war crime; however in so far as they intended to commit acts of sabotage they were subject to to trial for a war crime as they were non-combatants bent on commiting hostile acts and they were therefore unlawful combatants.

(Howard s. Levie: Terrorism in war, the laws of war crime 1993, p. 3)

So the saboteur would first of all be tried as a person who violated the art. 1 of the 1907 Hague convention IV, which is a war crime since he is committing a hostile act by not wearing a uniform:

The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps, fulfilling the following conditions:

To be commanded by a person responsible for his subordinates;

To have a fixed distinctive emblem recognizable at a distance;

To carry arms openly; and

To conduct their operations in accordance with the laws and customs of war.

In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination "army."

(source: http://www.yale.edu/lawweb/avalon/lawofwar/hague02.htm)

But the question is then is a secondary crime committed by the saboteur a war crime? The thing is that murder is both illegal as a national crime and a war crime. I would argue that since international law is superior to national law it would also be tried as a war crime. But had he 'spied' as levy argues he would be tried in accordance with national law since spying is not a violation of international law, but it would then go that a crime in violation of international law would be tried as a war crime. But I do believe that the law is not specific on this issue, and it would propably be up to the US to decide. The saboteur had forfetted his rights under international law by violating article 1. SO if US officials wanted to try him for violating national law instead of international law in the case of a murdered prostitute I couldn't imagine anyone objecting to this....

Best regards

David H.

JamesL · Post by **JamesL** » 15 Jul 2005 15:15

How many angels can dance on the head of a pin?

Allow me to rephrase: War crimes may be considered a violation of international law, but only because US national law says so. In our book, US national law trumps international law.

There recently was an interesting US Supreme Court ruling. It decided that a US national who committed a crime in Japan and who served 5 years in a Japanese prison was NOT considered a criminal in the USA. (See US vs. Gary Sherwood Small.) On the flip side, we know of a certain British national (one of the Beatles) who cannot visit the USA because he has a criminal conviction in Britain.

International tribunals may rule on anything but for their ruling to be enforced by the USA it must pass Constitutional muster. Hence one of our objections to the International Criminal Court.

David Thompson · Post by **David Thompson** » 15 Jul 2005 15:23

DXTR -- You said:

So It might well be that US. or Germany for that matter views/viewed national law as superior to international law, but when it comes down to a situation where an act is in violation of international law but not national law, international law in an international court would be superior to national law.

I think there is a semantic problem here which stems from the use and context of the word "superior." The term "superior" presuppose a conflict between national and international law in which one or the other must triumph, but this is only one of several possible situations. The main situations are: (1) The laws and customs of war prohibit a practice, but national law does not; (2) The laws and customs of war prohibit a practice, but national law excuses or authorizes the practice; (3) Both the laws and customs of war and the national laws prohibit a practice. The situation you have described above ("where an act is in violation of international law but not national law, international law in an international court would be superior to national law.") involves (1) or (2).

(1) Where an act is forbidden by international law and there is no applicable national law, the effect of the international law is to impose an additional obligation or duty. It is not a "superior law," but an additional law which must be obeyed. In this situation there is no conflict between national and international law. One law is silent, while the other speaks. The absence of a national law does not excuse performance under, or compliance with, international law.

(2) Where a national law excuses, or attempts to avoid, performance of obligations which arise under the laws and customs of law, the national law does not extinguish the rights of other nations under international law. A person who commits an act prohibited by the laws and customs of war may be safe from prosecution by his own government, but he has no defense against a prosecution by other authorities. This is the position of the German defendants at the IMT proceedings -- as to countries aggrieved by the commission of war crimes, German law could not and did not legitimize the acts of the defendants. In this case we might use the term "superior law," or view the situation as being one where national laws had severely limited applicability.

(3) Where both national law and the laws and customs of war prohibit a practice, a trial may be held under either law. As discussed above, the 1907 Hague IV Convention expresses a preference for the application of national law. If this is not done, the act may be prosecuted as a war crime under international law. In this situation, international law is not "superior" to national law, but is only an alternative resort if national law is not applied to punish the act.

Looking at these three situation, in (1) international law is not superior to national law, but supplements it. In (2) international law may be regarded as "superior" to national law under the stated circumstances. In situation (3) international law is not superior to national law, but is an alternative to it.

There is a very interesting and detailed discussion of situation (2), as it applied to German defendants, at:

The development of German law in the Third Reich
http://forum.axishistory.com/viewtopic.php?t=70906

DXTR · Post by **DXTR** » 21 Jan 2006 11:45

As elements pertaining to this issue is still being discussed in other threats (http://forum.axishistory.com/viewtopic.php?t=93963) I will reopen the debate David Thompson and I had 6 months ago by posting the following article.

'This is all alarmist nonsense'

British soldiers are to be tried over the deaths of two Iraqi civilians

Friday July 22, 2005
The Guardian

Daily Telegraph Editorial, July 21
"Eleven British servicemen ... are to be tried by courts martial in England over their conduct in Iraq two years ago. Four are charged with the manslaughter of Ahmed Kareem, a suspected looter in Basra ... The seven others are accused of offences connected with the death in army custody of Baha Mousa, a hotel receptionist ... Three of those seven - all of them members of the Queen's Lancashire Regiment [QLR] - are the first British servicemen to be charged under the International Criminal Court Act (ICCA), which was introduced by the present government to deal with war crimes ... "Members of Tony Blair's cabinet ... have frequently shown themselves ready to demand heroics from our armed forces ... Almost always, British servicemen behave in an exemplary way ... The very least that they should expect in return is the feeling that the government ... is fully on their side. How can they feel this, when Labour's law officers choose to parade their Islington consciences by charging British troops with war crimes?"

Daily Mail Editorial, July 21

"There is no doubt the prosecution of those accused of inflicting the beatings should be pursued. But what possible purpose is served by treating this as a war crime and dealing with it under the jurisdiction of the ICC in the Hague? ... Inhuman treatment is an offence under existing British law ...

"This newspaper argued against signing up to the ICC, warning that it would inevitably lead to British forces being arraigned on war crimes charges. So it has proved ... It is only a matter of time before British soldiers end up in the dock in the Hague - while real war criminals such as Bosnia's Radovan Karadzic and Ratko Mladic remain at large."

Timothy Garden Independent, July 21

"We have a military of which we can be rightly proud. It is a source of wonder that they, almost without exception, operate within the rule of law ... Our major ally, the US, has not ratified the ICC treaty, and this is often taken as an enviable example by senior officers. They worry that the military discipline system will disappear, and that we might find soldiers standing trial in the Hague.

"This is all alarmist nonsense. The ICC only swings into action when a state does not have a proper investigative and legal system to deal with allegations. British servicemen are protected because of our legal system. Properly handled cases will remain within the military chain of command, and, where there is a case to answer, will come to trial by court martial ... Killing people even in war needs to be taken seriously."

Timothy Garden is a former assistant chief of the defence staff

Andy McNab Sun, July 21

"Charging British soldiers with war crimes will act as a massive recruitment poster for Muslim fanatics ... It will destroy morale among the ordinary troops on the ground and put their young lives at risk. And employing the ICCA ... to prosecute these men is political correctness gone mad ... Any abuse of Iraqis by British soldiers must be stamped out and the guilty punished. But our first priority must be to our own soldiers on the ground. They are the future and need to be protected."

Herald Scotland, July 21

"The families of Mousa and Kareem have waited a long time - three years - for the cases to come before the appropriate forum ... At the time, the QLR was under intense pressure, dealing daily with riots, looting, kidnapping [and] bombings ... But that does not excuse unacceptable behaviour ... If rules of behaviour are flouted, those responsible must answer for their actions.

"It is crucial in these fraught times that the government demonstrates beyond doubt that everyone is treated equally before the law. That, of course, applies to the military ... But it also applies in a wider sense. There is a belief among young Muslims that there is one rule for them and another for everyone else ... We cannot risk further alienation or a sense of injustice spreading. We all have a part to play in addressing these issues, including the military."

Times Editorial, July 21

"Opponents of the war, predictably, have cited the cases as evidence that responsibility for abuses stretches not only high up the chain of military command but should also extend to those in government ... who took the decision to commit Britain to war. Such a conclusion is dangerous and wrong ...

"Worse still, the attempt by opponents of Britain's involvement in Iraq to balance the alleged crimes by a handful of soldiers against the atrocities daily committed by terrorists and suicide bombers is as immoral as it is flawed. There is no moral equivalence ... Equally reprehensible is the notion, put about by those hoping to denigrate the armed forces, that a court martial is, in some way, a cover-up by the military authorities to minimise the alleged offences and limit responsibility within the command structure ...

"The cases, far from undermining military morale, should enhance it. For Iraqis, the cases show an accountability lacking under the previous regime and a rule of law abhorrent to nihilist, egotistical insurgents."

Can anyone shed more light on this case. I would argue that it can be read both ways as to whether an unlawfull killing by an individual soldier not on order can be seen as a war crime or not. Hopefully we could get a bit closer on this issue since it is used as a pretext for arguing in other threads

regards David