The Laws of War: To whom do they apply?

Discussions on the Holocaust and 20th Century War Crimes. Note that Holocaust denial is not allowed. Hosted by David Thompson.
Ostfront Enthusiast
Member
Posts: 79
Joined: 08 May 2004 05:03
Location: Australia

The Laws of War: To whom do they apply?

Post by Ostfront Enthusiast » 20 Jan 2005 00:35

I have only several questions, as I admit that I am not versed in international law:

Do signatories of the laws of war have an obligation to respect such laws even when fighting against an enemy who has not ratified those laws (for example, in the case of the US fighting Japan)? When such laws are violated are they still war-crimes?

Would the breaking of General Orders No.100 by the US constitute a war-crime no matter who the US is fighting with?

David Thompson
Forum Staff
Posts: 23252
Joined: 20 Jul 2002 19:52
Location: USA

Post by David Thompson » 20 Jan 2005 01:34

Ostfront Enthusiast: You asked:
Do signatories of the laws of war have an obligation to respect such laws even when fighting against an enemy who has not ratified those laws (for example, in the case of the US fighting Japan)? When such laws are violated are they still war-crimes?

Would the breaking of General Orders No.100 by the US constitute a war-crime no matter who the US is fighting with?

I'll take your three questions one at a time:

(1)
Do signatories of the laws of war have an obligation to respect such laws even when fighting against an enemy who has not ratified those laws (for example, in the case of the US fighting Japan)?

That depends on the treaty. Each one has different provisions. In WWII, the two main treaties governing the laws and customs of land warfare were Hague Convention IV of 1907 on the laws and customs of land warfare and the Geneva Convention of 1929 regarding the treatment of prisoners of war. There were also other provisions in the Hague Convention with regard to warfare on the high seas. You can check the texts from the links posted at:

The Laws of War
viewtopic.php?t=26829

Hague III - Opening of Hostilities: 18 October 1907
http://www.yale.edu/lawweb/avalon/lawofwar/hague03.htm

Hague IV - Laws and Customs of War on Land: 18 October 1907
http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm

1929 - Convention Between the United States of America and Other Powers, Relating to Prisoners of War; July 27
http://www.yale.edu/lawweb/avalon/lawofwar/geneva02.htm

(2)
When such laws are violated are they still war-crimes?

When the laws are violated by nations, they are generally considered war crimes. When the laws are violated by individuals without the sanction of the nation that individual serves, they can be treated as war crimes by the offended nation, or as criminal acts by the country employing the individual, or as criminal acts by the country where the act occurred.

(3)
Would the breaking of General Orders No.100 by the US constitute a war-crime no matter who the US is fighting with?

No. General Orders No. 100 was enacted by the United States in 1863 as a code of conduct for the armed forces during the American civil war. It was not an international treaty, just a domestic law. General Orders No. 100 was recaptioned the Articles of War, and replaced in 1920 by the Revised Articles of War, which in turn was replaced in 1951 by the Uniform Code of Military Justice (UCMJ). All of these are domestic laws of the United States, meant to govern the behavior of its troops in war and peace. The US Army has had various versions of the Articles of War to regulate the conduct of its serving troops since 1775.

A good example showing the difference is the case of a sentinel in the US Army who is drunk on duty. That would be an offense against General Orders No. 100, the Revised Articles of War, and the UCMJ. It would not, however, be a war crime. A soldier who refused to obey the lawful orders of his superior officer, or who stole from his fellows could be punished under the Articles of War, but that offense would not be a war crime.

General Orders No 100 (1863)
http://www.yale.edu/lawweb/avalon/lieber.htm

Revised Articles of War of 1912/1920
http://www.loc.gov/rr/frd/Military_Law/ ... -1920.html

UCMJ
http://www.au.af.mil/au/awc/awcgate/ucmj.htm
Last edited by David Thompson on 20 Jan 2005 02:04, edited 3 times in total.

Ostfront Enthusiast
Member
Posts: 79
Joined: 08 May 2004 05:03
Location: Australia

Post by Ostfront Enthusiast » 20 Jan 2005 02:00

Thank you David Thompsen for your promp and informative reply. Two questions, however as a follow up.

The Hague IV - Laws and Customs of War on Land convention declares:

Art. 2.
The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention.


If I understand this correctly, does this provide a license to commit what would otherwise be war-crimes against a nation that is not a signatory to the Convention?

Can you tell me who the signatories of this convention were (they are not listed on your link)? Was the Soviet Union or Japan ever a signatory of the Convention? As I understand it neither Germany nor the Soviet Union agreed to follow the laws of war on the Ostfront. Under what laws then did the Soviets later put to trial German war-criminals?

Furthermore, if the laws of war do not apply "except between Contracting Powers" would it not then be legally dubious to put on trial war-criminals whose nations never signed the convention? Excatly under what law then was this done?

Thank you for trying to help me understand.

Best Regards

David Thompson
Forum Staff
Posts: 23252
Joined: 20 Jul 2002 19:52
Location: USA

Post by David Thompson » 20 Jan 2005 02:32

Ostfront Enthusiast -- I'll see if I can provide some answers to your questions. The time-consuming part is finding the sources to back up the answers and providing hyperlinks to them. This may take a little time, but when I do, I'll post them here.

Ostfront Enthusiast
Member
Posts: 79
Joined: 08 May 2004 05:03
Location: Australia

Post by Ostfront Enthusiast » 20 Jan 2005 02:41

Hello Mr. David Thompson

You can be certain that I appreciate your efforts very much. Please, take all the time that you need.

Best Regards
Last edited by Ostfront Enthusiast on 20 Jan 2005 02:47, edited 1 time in total.

David Thompson
Forum Staff
Posts: 23252
Joined: 20 Jul 2002 19:52
Location: USA

Post by David Thompson » 20 Jan 2005 02:47

(1) The Geneva Convention of 1929

The participants in the 1929 Geneva Convention are listed at: http://www.yale.edu/lawweb/avalon/lawofwar/geneva02.htm

(a) Germany

Germany was a signatory to this treaty, as were most other European countries and the United States.

(b) Japan

It is my understanding that though the treaty was signed by a representative of the Emperor of Japan, it was not ratified due to resistance from the Japanese cabinet and Privy Council. There is a quote from a learned essay on the subject of Japan and the Geneva Convention at: viewtopic.php?p=243116#243116

Following the outbreak of WWII, the US government issued a statement on 27 December 1940 expressing the hope that the Hague and Geneva treaties would be "mutually applied." It was followed by similar statements from the governments of England, Canada, Australia and New Zealand. In response, the Japanese Foreign Ministry compiled a "Note of Reply," after which it gathered representatives of the Army Ministry's Military Affairs Bureau, the Police Department and the Overseas Development Ministry for a meeting held on 21 January 1942. The Foreign Ministry's recommendation at this meeting was that "Every effort should be made to correspondingly apply the provisions of the treaties regarding any prisoners of enemy countries that fall under the authority of Japan, including issues such as food, clothing, and the treatment of the prisoners in accordance with internationally recognised standards of human rights."

After ascertaining that there were no differences of opinion on the POW issue, the Vice-Minister for the Army, KIMURA Heitarô, replied to the Vice-Minister for Foreign Affairs, NISHI Haruhiko: "While we cannot proclaim our open support for the (Geneva) Convention, we have no objections to measures taken with regard to the treatment of prisoners of war."[12]

What did the Japanese government really mean by the phrase "correspondingly apply?" As we can see, its vagueness was echoed in the Vice-Minister's response. While there were minor differences of opinion and interpretation regarding the POW issue within the army and the government the following official statement was finally relayed to the allied governments through the Swiss Embassy.

1. "As a signatory to the 1929 International Red Cross Convention, the Japanese Empire rigorously adheres to the principles established under this Convention.

2. "Although the Japanese Empire has not ratified the 1929 International Convention on the Treatment of Prisoners of War, and is therefore not considered to be bound by this Convention in any way, it is Japan's intention to correspondingly apply the principles of this Convention to any American prisoners who fall under the jurisdiction of Japan."[13]

A similar reply was also sent to the other allied countries, affirming Japan's intention to "correspondingly apply" the principles of a convention it had not ratified.


[12] "Memorandum: Responses to the inquiries of Allied Powers regarding the treatment of POW," and Items from the Greater East Asia War: treaty regulations and general problems concerning the treatment of prisoners of war of enemy states. Diplomatic Records Office, Japan Ministry of Foreign Affairs (in Japanese).

[13] From Items from the Greater East Asia War: general problems and relations between enemy states concerning the treatment of prisoners of war. Diplomatic Records Office, Japan Ministry of Foreign Affairs (Japanese).


(c) The USSR

The USSR was not a signatory to this treaty.

User avatar
John W
Financial supporter
Posts: 9088
Joined: 03 Jan 2003 07:12
Location: United States of America

Post by John W » 20 Jan 2005 03:08

Mr. Thompson:

This might be slightly offtopic (but perhaps related):

1. What is meant by "ratification" anyway?
2. Isn't being a signatory to a treaty evidence/proof enough that the parties signing the treaty accept the treaty?

David Thompson
Forum Staff
Posts: 23252
Joined: 20 Jul 2002 19:52
Location: USA

Post by David Thompson » 20 Jan 2005 03:20

John W -- You asked:

1.
What is meant by "ratification" anyway?

Some countries do not vest all of their sovereign power in the head of state. The United States is an example. The US Constitution provides (in Article II, Section 2):
He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur . . . .

Where the power of the head of state is limited by a constitutional provision like this, the treaty must be ratified -- in this case, approved by a 2/3 vote of the US Senate -- to become law.

2.
Isn't being a signatory to a treaty evidence/proof enough that the parties signing the treaty accept the treaty?

Not where the power of the head of state is limited by a national constitution. No agent can possess any power greater than the principal for whom he acts.

JamesL
Member
Posts: 1647
Joined: 28 Oct 2004 00:03
Location: NJ USA

Post by JamesL » 20 Jan 2005 03:42

I am not sure the link shown below will work. If it does, it will lead one to the US Army Judge Advocate Generals School, Law of War Deskbook. Some interesting reading.


https://www.jagcnet.army.mil/jagcnetint ... enDocument



I believe Russia and Germany both signed the Kellogg-Briand Pact of 1928, banning 'aggressive war.' It would be a stretch, but Russia could have used this Pact as a basis for prosecuting German officials/officers.

David Thompson
Forum Staff
Posts: 23252
Joined: 20 Jul 2002 19:52
Location: USA

Post by David Thompson » 20 Jan 2005 04:42

The USSR could also have put German officials and soldiers on trial for having violated Soviet law within the territory of the USSR. The Germans had no privilege to come into the country and plunder the countryside, destroying houses by arson or explosives, engaging in slaving, killing POWs, or executing civilians who had committed no triable offense. These acts violated the ordinary laws of the USSR, which made the perpetrators common criminals. For offenses like these, a uniform confers no immunity.

Ostfront Enthusiast
Member
Posts: 79
Joined: 08 May 2004 05:03
Location: Australia

Post by Ostfront Enthusiast » 20 Jan 2005 06:39

Thanks all for contributions, especially Mr. Thompson,

Now, under Article 1 of the Convention Between the United States of America and Other Powers, Relating to Prisoners of War; July 27, 1929 it states that:

The present Convention shall apply...

To all persons mentioned in Articles 1, 2 and 3 of the Regulations annexed to the Hague Convention respecting the laws and customs of war on land, of October 18, 1907, and captured by the enemy.


Which are that:

Art. 2.
The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention.



So technically could not the case be made that Japanese war-criminals could not legally be tried as they never ratified the treaty and thus were not bound by it? Under what legal basis were they then charged?

Since they were of course charged anyway doesn't this precedent refute the legal possibility I mentioned earlier that one need not respect the Conventions when fighting a nation that hasn't itself ratified them?

Just trying to understand.

Best Regards

David Thompson
Forum Staff
Posts: 23252
Joined: 20 Jul 2002 19:52
Location: USA

Post by David Thompson » 20 Jan 2005 12:09

Ostfront Enthusiast -- You asked:
So technically could not the case be made that Japanese war-criminals could not legally be tried as they never ratified the treaty and thus were not bound by it? Under what legal basis were they then charged?

In regard to both the Hague and the Geneva Conventions, we need more information to give an historically accurate answer. The issue is what theory did the allied governments actually use when they held the war crimes trials. Hopefully I can dig it up, although unlike the trials held in Europe, most of the the Japanese war crimes trials have not been scanned or posted on the internet.

Theoretically, the 27 Dec 1940 statement of President Roosevelt, and the official Japanese reply note of early 1942, in which the Japanese government said:
Although the Japanese Empire has not ratified the 1929 International Convention on the Treatment of Prisoners of War, and is therefore not considered to be bound by this Convention in any way, it is Japan's intention to correspondingly apply the principles of this Convention to any American prisoners who fall under the jurisdiction of Japan.

itself constituted an international agreement, the violation of which was punishable as a war crime. Until I get some confirming information, however, I cannot say that this was the theory used in the prosecutions of Japanese violations of the Geneva Convention.

Another theory, long used in warfare, is that the Japanese mistreatment of POWs gave the allied nations the right of reprisal. That right, which could be exercised against any members of the Japanese armed forces who fell into allied hands, could be humanely exercised by executing the actual offenders instead of taking out the grievance on otherwise innocent Japanese POWs.

At the moment, both of these are just theories of justification, and we need to see what, if anything, the allies actually said about it. More as I find it.

David Thompson
Forum Staff
Posts: 23252
Joined: 20 Jul 2002 19:52
Location: USA

Post by David Thompson » 20 Jan 2005 13:22

There are eight reported war crimes trials with Japanese defendants online at Dr. Stuart D. Stein's Web Genocide Documentation Centre at: http://www.ess.uwe.ac.uk/genocide/. At those trials, the various allied military tribunals took the following positions:

(1) British military tribunal -- The defendant could be punished because he committed an act of common murder on British Territory (Malaya).

Trial of Yamamoto Chusaburo, Law Reports of Trials of War Criminals. Selected and Prepared by the United Nations War Crimes Commission. Volume III. London: HMSO, 1948, pp. 76-80; http://www.ess.uwe.ac.uk/WCC/chusaburo.htm

(2) American military tribunal -- The defendants could be punished because (a) the Japanese government had bound itself to obey the Geneva Convention by its reply note in 1942; and (b) the charged crimes were violations of previously accepted laws of war, independent of any charge arising under the Geneva and/or Hague Conventions.

Trial of General Tanaka Hisakasu and five others, Law Reports of Trials of War Criminals, United Nations War Crimes Commission. Volume VI, London: HMSO, 1948, pp. 66-81; http://www.ess.uwe.ac.uk/genocide/
http://www.ess.uwe.ac.uk/WCC/hisakasu.htm

The Jaluit Atoll Case. Trial of Rear-Admiral Nisuke Masuda and Four Others of the Imperial Japanese Navy, Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume I, London, HMSO, 1947, pp. 72-80; http://www.ess.uwe.ac.uk/WCC/jaluit.htm

Trial of Lieutenant General Harukei Isayama and Seven Others, Law Reports of Trials of War Criminals. Selected and Prepared by the United Nations War Crimes Commission. Volume VI, London: HMSO, 1948, pp. 60-65; http://www.ess.uwe.ac.uk/WCC/isayama.htm

(3) Australian military tribunal -- The defendants could be punished because they committed violations of the Hague Convention on Australian Territory (Rabaul).

Trial of Sergeant-Major Shigeru Ohashi and Six Others, Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume V, London, HMSO, 1948, pp. 25-31; http://www.ess.uwe.ac.uk/WCC/ohashi.htm

Trial of Captain Eitaro Shinohara and Two Others, Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume V, London, HMSO, 1948, pp. 33-36; http://www.ess.uwe.ac.uk/WCC/shinohara.htm

Trial of Captain Eikichi Kato, Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume I, London, HMSO, 1949, pp. 37-38; http://www.ess.uwe.ac.uk/WCC/kato.htm

(4) Chinese military tribunal -- The defendants could be punished because they had committed violations of international treaties signed by Japan (the Paris or Kellogg-Briand Pact of 27th August, 1928 and the Nine Power Treaty of 6th February, 1922), had committed war crimes under the Hague and Geneva Conventions, and had committed violations of Chinese penal law on Chinese territory.

Trial of Takashi Sakai, Law Reports of Trials of War Criminals. Vol. III. The United Nations War Crimes Commission, 1948, pp. 1-7; http://www.ess.uwe.ac.uk/WCC/sakai.htm

David Thompson
Forum Staff
Posts: 23252
Joined: 20 Jul 2002 19:52
Location: USA

Post by David Thompson » 21 Jan 2005 06:31

(2) The Hague IV Convention of 1907

According to the University of Minnesota Human Rights Law Library, at:
http://www.icrc.org/ihl.nsf/WebNORM?Ope ... =15.1#15.1
these nations signed and ratified the Hague IV Convention of 1907:

Country/ Date signed/ Date(s) ratified

Austria-Hungary 18.10.1907 27.11.1909 27.11.1909
Belarus 04.06.1962
Belgium 18.10.1907 08.08.1910
Bolivia 18.10.1907 27.11.1909
Brazil 18.10.1907 05.01.1914
China 10.05.1917
Cuba 18.10.1907 22.02.1912
Denmark 18.10.1907 27.11.1909
Dominican Republic 18.10.1907 16.05.1958
El Salvador 18.10.1907 27.11.1909
Ethiopia 05.08.1935
Fiji 02.04.1973
Finland 30.12.1918
France 18.10.1907 07.10.1910
Germany 18.10.1907 27.11.1909 27.11.1909
Guatemala 18.10.1907 15.03.1911
Haiti 18.10.1907 02.02.1910
Japan 18.10.1907 13.12.1911 13.12.1911
Liberia 04.02.1914
Luxembourg 18.10.1907 05.09.1912
Mexico 18.10.1907 27.11.1909
Netherlands 18.10.1907 27.11.1909
Nicaragua 16.12.1909
Norway 18.10.1907 19.09.1910
Panama 18.10.1907 11.09.1911
Poland 09.05.1925
Portugal 18.10.1907 13.04.1911
Romania 18.10.1907 01.03.1912
Russian Federation 18.10.1907 27.11.1909 27.11.1909
South Africa 10.03.1978
Sweden 18.10.1907 27.11.1909
Switzerland 18.10.1907 12.05.1910
Thailand 18.10.1907 12.03.1910
United Kingdom 18.10.1907 27.11.1909
United States of America 18.10.1907 27.11.1909

These nations signed (see date) but did not ratify the treaty, so they were not parties to it:
Argentina 18.10.1907
Bulgaria 18.10.1907
Chile 18.10.1907
Colombia 18.10.1907
Ecuador 18.10.1907
Greece 18.10.1907
Iran (Islamic Rep.of) 18.10.1907
Italy 18.10.1907
Montenegro 18.10.1907
Paraguay 18.10.1907
Peru 18.10.1907
Serbia 18.10.1907
Turkey 18.10.1907
Uruguay 18.10.1907
Venezuela 18.10.1907
Last edited by David Thompson on 10 Mar 2005 04:15, edited 1 time in total.

David Thompson
Forum Staff
Posts: 23252
Joined: 20 Jul 2002 19:52
Location: USA

Post by David Thompson » 21 Jan 2005 09:59

Ostfront Enthusiast -- OK, that takes care of the research. Your second set of questions were:

(1)
The Hague IV - Laws and Customs of War on Land convention declares:
Art. 2.
The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention.


If I understand this correctly, does this provide a license to commit what would otherwise be war-crimes against a nation that is not a signatory to the Convention?

That question was never settled. Some European countries took that position, and committed what would otherwise have been war crimes against "native" populations in their colonies between 1907 and 1939. The Italian war against Abyssinia (Ethiopia), a non-signatory to the Hague IV Convention, is another example. There were many protests against this behavior, contending that the Hague IV Convention only memorialized pre-existing laws and customs of war, to which there should be no exceptions. During and after WWII, the US took this position. This Hague IV controversy was largely ended by the 1949 Geneva Convention.

(2)
Can you tell me who the signatories of this convention were (they are not listed on your link)?

Answered in the post immediately above at: viewtopic.php?p=625802#625802

(3)
Was the Soviet Union or Japan ever a signatory of the Convention?

Both were signatories.

(4)
As I understand it neither Germany nor the Soviet Union agreed to follow the laws of war on the Ostfront.

Neither Germany nor the Soviet Union officially renounced the Hague Convention IV of 1907 during the course of WWII. German documents, secret at the time, state that the German version of the articles of war would be relaxed on the Eastern Front ("Barbarossa jurisdiction order"), that certain other measures (illegal under the Hague IV convention) would be taken, and that Germany did not feel it necessary to comply with the 1929 Geneva Convention on POWs because the USSR had been "dissolved" as a political entity by the German attack. I believe that the USSR published a diplomatic note stating that the Soviets intended to comply with the terms of the 1929 Geneva Convention, which they had not signed. Confirming this will take more research, but the 1929 Geneva Convention on POWs did not have a "reservation clause" like the Hague IV Convention article quoted above, and Germany did sign it.

(5)
Under what laws then did the Soviets later put to trial German war-criminals?

The Hague IV Convention of 1907, the International Military Tribunal charter with the provisions of international law incorporated in it, and Soviet law for offenses committed on Soviet territory.

(6)
Furthermore, if the laws of war do not apply "except between Contracting Powers" would it not then be legally dubious to put on trial war-criminals whose nations never signed the convention?

(a) The laws and customs of war have an existence independent of individual treaties.

(b) The Hague IV Convention, which had the "except between Contracting Powers" reservation clause, was signed by most, if not all of the belligerent powers, including the US, UK, Russia (and its successor state, the USSR), Germany and Japan. That means that the "except between Contracting Powers" reservation clause was inapplicable to war criminals from the Axis powers, who committed crimes against the other contracting powers.

(c) The 1929 Geneva Convention on POWs did not have an "except between Contracting Powers" reservation clause.

(d) A nation which makes a pledge to another (like the 1942 Japanese Geneva Convention note) and then breaks that pledge is liable to punishment by offended nations whose nationals have been mistreated as a result of the broken agreement. The scope of the punishment necessarily includes the persons who broke the pledge.

(e) A nation's government which has not been extinguished can always try enemy nationals for crimes committed on its own territory, in violation of its own national laws.

(7)
Excatly under what law then was this done?

See (6)(a) through (e), above.

Return to “Holocaust & 20th Century War Crimes”