Ordinary Crimes/War Crimes

Discussions on the Holocaust and 20th Century War Crimes. Note that Holocaust denial is not allowed. Hosted by David Thompson.
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DXTR
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Post by DXTR » 26 Jun 2005 18:46

Andy H wrote:
Isn't this just a rape or murder (barbaric yes, but still only murder) which occured all over the world during WW2!

Its not classed as a warcrime is it?


If a rape or mishandling/murder of a civilian during an occupation was committed by the armed forces, then it is still a warcrime, unless the territory was legally annexed by the occupying power and by that it would make it a civilian criminal murder/mistreatment case. All actions that are in violation of the Laws of War that be the Geneva or Hague conventions are warcrimes, no matter if it was government sanctioned or not. Yes murders happened during the World Wars but that does not make it any more less a crime done during war and therefore a war crime

The Hague Convention of 1907 SECTION III. -- ON MILITARY AUTHORITY OVER HOSTILE TERRITORY says:

Article 43
The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country


Article 46
Family honors and rights, individual lives and private property, as well as religious convictions and liberty, must be respected.

Private property cannot be confiscated.


Individual soldiers who commit crimes that violates any of the articles under section III can be brought to justice for war crimes. If the authorities or military high command have either sanctioned those crimes or have not taken the proper precautions to prevent such violations can then be brought to justice for war crimes too.

Best regards

David

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Post by Andy H » 26 Jun 2005 19:07

If a rape or mishandling/murder of a civilian during an occupation was committed by the armed forces, then it is still a warcrime, unless the territory was legally annexed by the occupying power and by that it would make it a civilian criminal murder/mistreatment case.


Hi DXTR

Many thanks for your reply.

Given what you stated above, how do the American service personnel who committed rape & murder within the UK stand against it. Its my understanding that they were court-martialed and given death sentences by US Military Courts and they were not charged with warcrimes but just rape/murder.

Also what about those people raped by the liberating armies of the west, how do they fair?

Andy H

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Post by David Thompson » 26 Jun 2005 19:30

DXTR -- You said:
If a rape or mishandling/murder of a civilian during an occupation was committed by the armed forces, then it is still a warcrime, unless the territory was legally annexed by the occupying power and by that it would make it a civilian criminal murder/mistreatment case. All actions that are in violation of the Laws of War that be the Geneva or Hague conventions are warcrimes, no matter if it was government sanctioned or not. Yes murders happened during the World Wars but that does not make it any more less a crime done during war and therefore a war crime

I don't think this is accurate. Rapes, thefts, etc., when committed by individual members of the armed forces of one or another country are just garden variety crimes, punishable by the laws of the country where the offense was committed, or by the articles of war of the country controlling the armed forces. Such crimes only become war crimes when either they are committed at the behest of a military commander or national policy, or when the military commander or his superiors knowingly and willfully refuse to punish such crimes when committed, and hence encourage the commission of crimes. If there are any examples of an individual soldier or band of soldiers, not acting under military orders, who killed a single person, raped or stole and was/were put on trial or punished pursuant to the terms of the Hague Convention, I'd like to see the documents.

Since this subject is off-topic on this particular thread, I'll give it a thread of its own should it continue.

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What constitutes a war criminal - war crime

Post by DXTR » 28 Jun 2005 01:19

Ok under the threat of being moved :) for being too off topic I still find it necessary to reply to both Andy H. and David Thompson.

First of all let me note that debating what constitutes a war crime is a difficult task. First of all this is not a debate on whether a certain action under war can be considered a crime or not such as the bombing of Dresden. My opponents (in this case David Thompson) and I have agreedwhat constitutes a crime. The problem in our debate lies at the heart of when a soldier becomes a war criminal.

I stated above in another post that
All actions that are in violation of the Laws of War that be the Geneva or Hague conventions are warcrimes, no matter if it was government sanctioned or not. Yes murders happened during the World Wars but that does not make it any more less a crime done during war and therefore a war crime.


David Thompson replied that

I don't think this is accurate. Rapes, thefts, etc., when committed by individual members of the armed forces of one or another country are just garden variety crimes, punishable by the laws of the country where the offense was committed, or by the articles of war of the country controlling the armed forces. Such crimes only become war crimes when either they are committed at the behest of a military commander or national policy, or when the military commander or his superiors knowingly and willfully refuse to punish such crimes when committed, and hence encourage the commission of crimes. If there are any examples of an individual soldier or band of soldiers, not acting under military orders, who killed a single person, raped or stole and was/were put on trial or punished pursuant to the terms of the Hague Convention, I'd like to see the documents.


The Nuremberg tribunal defined a war crime in article 6 as:

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 as we can see their definition did not limit the definition of a war crime as a crime done only by leaders, organisations or individuals taken part in that organisation or aiding a conspiracy to violate the laws of war. But the Tribunal did however only seek to go for the big fish. Therefore it was limited to the following persons (under article 6)

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.


But that does not make a small fish any more less a war criminal, if he violates the laws of war he is a war criminal even if he is tried by his own government since he committed a crime during war. In the case of the Marine shooting an supposedly unarmed Iraqi, Human rights groups according to CNN said it was a war crime. If it was a war crime the perpetrator by definition must be a war criminal.( http://www.cnn.com/2004/WORLD/meast/11/16/marine.probe/ ) (and yes I am aware that eventually the soldier was acquited)

But lets have a look on the ‘garden variety’ or lesser cases (small fish). David T. asked for documents to prove my claim.

If we start with the case of Peter Back ( http://www.ess.uwe.ac.uk/WCC/back.htm ):
CASE No. 15
Trial of PETER BACK
UNITED STATES MILITARY COMMISSION, AHRWEILER, GERMANY.
16TH JUNE, 1945
A. OUTLINE OF THE PROCEEDINGS
It was charged that Peter Back, a German civilian, “ did, at or near Preist, Germany, on or about 15th August, 1944, violate the laws and usages of war by wilfully, deliberately and feloniously killing an American airman, name and rank unknown, a member of the Allied Forces, who had parachuted to earth at said time and place in hostile territory and was then without any means of defence.” He pleaded not guilty.
It was shown that the accused had shot an unarmed airman who had been forced to descend by parachute on to German territory. The Commission passed a sentence of death. The Army Judge Advocate recommended that the sentence be approved, but execution stayed pending further orders.



David Thompson you wrote

Such crimes only become war crimes when either they are committed at the behest of a military commander or national policy, or when the military commander or his superiors knowingly and willfully refuse to punish such crimes when committed, and hence encourage the commission of crimes.


But as you can see Peter Back violated the laws of war and was convicted of such but he was not qualifying to your definition of a war criminal. But he was convicted by the Commanding General, 12th Army Group, in this instance to the Commanding General, 15th United States Army.

As I can understand from your reply we should differentiate between the traditional civilian crimes and the traditional war crimes such as murder, rape, theft vs. shooting of POW’s and so on.

Lets have a look on another case that resembles the rape case from france ( http://www.ess.uwe.ac.uk/WCC/chusaburo.htm )


CASE No. 20
Trial of YAMAMOTO CHUSABURO
BRITISH MILITARY COURT, KUALA LUMPUR, 30TH JANUARY-1ST FEBRUARY, 1946
A. OUTLINE OF THE PROCEEDINGS
The accused, a sergeant in the Imperial Japanese Army, was charged of having committed a war crime “ in that he at or about 2300 hours on 12th September, 1945, at Kuala Lumpur contrary to the laws and usages of war killed one Omar a civilian resident of Kuala Lumpur.” The accused admitted killing a Malaya civilian, Omar, who, he claimed, had stolen rice from the army stores, but pleaded, inter alia, that he acted in self-defence and under the influence of alcohol. The Court found him guilty and sentenced him to death by hanging, but with a recommendation for mercy. The sentence was, however, confirmed and put into effect.


Although Mr. Chusaburo did not rape his victim, he killed the victim too. A Japanese soldier who kills a civilian on ‘occupied territory’ not on a superior officers’ order, basically commits a murder. But since he is a soldier he was tried by the British military courts and since he was found guilty he was a warcriminal.

The defence did however try to argue that Japan had surrendered and therefore it would be a civilian murder case and not a military case (a case of war crime)


This submission that, on a charge of killing, it need not be proved that an alleged war criminal had committed murder as defined by English law is reminiscent of the advice rendered by the Legal Member in the Essen Lynching Case, to the effect that a charge of killing in a war crime trial was not one of murder, that is to say of a “ killing of a person under the King’s peace.

The Prosecutor went on to state that the alleged offence took place at a time when, although open hostilities had ceased, the Japanese were still armed and in control of certain areas “ pending the consummation by surrender of their capitulation.” War did not end with the mere cessation of hostilities, and any violation of the Laws and Usages of War committed during the process of surrender and disarming was as much a war crime as one committed at the height of battle ; all the more so if the act was a breach of the terms of the convention for capitulation.

So as you can see above the prosecutors and the courts did not accept that this was just ‘civilian murder’ since the soldier was still acting under the laws of war – and by that he was a war criminal.
Lets try adress Andy H’s question:

Given what you stated above, how do the American service personnel who committed rape & murder within the UK stand against it. Its my understanding that they were court-martialed and given death sentences by US Military Courts and they were not charged with warcrimes but just rape/murder.

Also what about those people raped by the liberating armies of the west, how do they fair?

First of all soldiers acting in friendly territory can not be tried as war criminals, since they are not committing a crime in war operations on enemy soil (or territory on which the military operation was conducted). The reason for the laws of war, was to regulate that grey area called international law in times of war. In times of war there is no superior international court or police, so instead of having anarchy in the international system. We have international law – at first international law more or less only dealt with universal laws on war, since nations often seemed to deal with each other through the tool of war.

But before I stray from the path lets get back to the question posted by Andy H:

When US service men are in the UK they are acting under invitation by the British government. I would guess there was an agreement between the US and UK government as how to deal with criminal acts outside US military installations. If lets say a paratrooper in Britain in 1944 gets drunk and rapes a british girl, this is not a war crime, although he is part of an army waging war. But the crime was not committed against a person who was part of the enemy nation or a nation on which territory the military operations were being conducted.
And when it comes to ‘all those being raped by the liberating armies of the west’. I am not a lawyer and there might be pitfalls. But if the territory on which the rape was conducted was still in a state of war without a legal central government that had arrangement with the army from where the rapist came, then it would become a war crime.
People seem to assume that war crimes are much graver than ‘normal’ civilian crimes. But in nature they are not. A murder is still a murder. But the laws of war deals with violations between nations in a time of war. The problem lies in semantics and our understanding of it. When people use the term ‘War criminal’ they think of nazi genocidal maniacs with a body count that would make Ted Bundy look like a lesser criminal. But there is no definition on war criminals that goes by volume, only by violations of the laws of war.

So I hope that I have now clarified that actions in violation of the laws of war committed by individual soldiers not acting on superior order, even if they just resembles ‘civilian’ crimes are still war crimes.

Best regards

David H

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Post by Obdicut » 28 Jun 2005 02:03

I started a thread on looting and it's applicability as a war crime-- that thread can be found here. http://forum.axishistory.com/viewtopic.php?t=79006&start=15

DXTR, I think that the distinction that Mr. Thompson is trying to make between "garden variety crimes" and war crimes is the following-- and please correct me if I am misinterpreting, Mr. Thompson:

If a soldier, at his own behest and not during a military action, enters a private home and kills a citizen, that is simply a murder like any other murder. If a soldier, occupying a town and attempting to force out civilians to provide barracking for the troops, shoots a civilian, that is a war crime-- an action taken against civilians by a member of the military acting in his military capacity.

The secondary part of Mr. Thompson's argument allows for the first example I gave to be a war crime if it is a routinely common occurence that tends not to be punished-- in which case it does become military policy.

In other words, I do not think that you and he are actually arguing against each other, but that semantical difficulties have erupted.

Please, if I have misinterpreted or misstated either of your arguments, accept my apologies.

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Post by David Thompson » 28 Jun 2005 10:23

DXTR -- I'm assuming that you meant the cases of Peter Back and Sergeant Yamamoto to serve as examples of "garden variety" crimes which were punished as war crimes, in response to my comment:
Rapes, thefts, etc., when committed by individual members of the armed forces of one or another country are just garden variety crimes, punishable by the laws of the country where the offense was committed, or by the articles of war of the country controlling the armed forces. Such crimes only become war crimes when either they are committed at the behest of a military commander or national policy, or when the military commander or his superiors knowingly and willfully refuse to punish such crimes when committed, and hence encourage the commission of crimes. If there are any examples of an individual soldier or band of soldiers, not acting under military orders, who killed a single person, raped or stole and was/were put on trial or punished pursuant to the terms of the Hague Convention, I'd like to see the documents.

Note that my generalization is restricted to "individual members of the armed forces of one or another country."

Let's look first at the case of Peter Back, and why he (and others) were put on trial by American military tribunals for violating the laws and usages of war. He was accused of killing a downed American airmen who had been taken prisoner, and therefore the victim was a POW.

In speaking of "garden variety" crimes committed by individual members of the armed forces of one or another country, I remarked:
Such crimes only become war crimes when either they are committed at the behest of a military commander or national policy, or when the military commander or his superiors knowingly and willfully refuse to punish such crimes when committed, and hence encourage the commission of crimes.

Peter Back was a civilian, rather than a member of the German armed forces. The act of which he was accused -- the murder or ill-treatment of prisoners of war -- was classified as a war crime under Article 6, as you pointed out. Peter Back was liable to be tried for his crime under Article 6 because he fell into the category of "accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes." The common plan or conspiracy in his case had a larger context -- a national policy in Nazi Germany in the 1944-1945 period to encourage the lynchings of allied "terror aviators." The policy, which involved the armed forces, police, Nazi party officials and civilians, is documented in the thread "'Other' War Crimes -- POW Lynchings" at:
viewtopic.php?t=14467

The US put a number of these lynchers on trial in a series of legal proceedings generally and collectively referred to by the Germans as "fleigerprozess". There are newspaper accounts of a couple of these trials at:

Other War Crimes - Russelsheim Lynching Trial
viewtopic.php?t=16792
Other War Crimes - Gross Gerau Lynching Trial
viewtopic.php?t=16795

For that reason, I disagree with your characterization:
But as you can see Peter Back violated the laws of war and was convicted of such but he was not qualifying to your definition of a war criminal.

because Back's act of murder was not the "garden variety" crime of an individual but instead fell within the definition of a war crime (murder and mistreatment of POWs) and was "committed at the behest of a military commander or national policy."

For our readers, from my notes:
Back, Peter (?-29.6.1945) -- "semi-crippled Nazi Party official" {arrested and put on trial by an American military tribunal at Ahrweiler for the murder of a downed American airman outside Preist, near Trier, 15 Aug 1944; convicted and sentenced to death by hanging 16 Jun 1945 (NYT 2 Jun 1945:7:7; NYT 17 Jun 1945:7:3; Nazi Conspiracy & Aggression V, pps. 294-5 [Document 2559-PS]); executed 29 Jun 1945 at Rheinbach (NYT 30 Jun 1945:1:6). (Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume III pps. 60-61, London, HMSO: 1948).}

I'll do a little more reading and return to discuss the case of Sergeant Yamamoto.

Obdicut -- I think your post sums up my point of view pretty well.

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Post by DXTR » 30 Jun 2005 22:47

First of all, its a good thing that I watched all those episodes of LA. Law back in the 80's because I wouldn't know how to present my case in danish legal language.....

Ok first of all before I present my counter argument on this issue, I would like to correct a few misunderstandings that Obdicut expressed.

Obdicut wrote:
If a soldier, at his own behest and not during a military action, enters a private home and kills a citizen, that is simply a murder like any other murder. If a soldier, occupying a town and attempting to force out civilians to provide barracking for the troops, shoots a civilian, that is a war crime-- an action taken against civilians by a member of the military acting in his military capacity.


The original argument between me and David Thompson stems from a discussion on whether a case of two individual German soldiers who committed a rape and murder in occupied France could constitute a war crime. Therefore, and as I have pointed out before, we are dealing with a situation where a country was occupied, and therefore a military action was taking place namely a German armed occupation, and by that the Laws of War applies as in the Hague Convention section III art 42. Therefore your definition, obdicut, of a case 'not during a military action' (and please note again that ’military action also applies to occupation, even if hostilities have ended) is of course not a case of war crime, since the perpetrating soldiers would be responsible only to national law since its not a time of war.

So let us return to the debate between me and David T. And I do apologize if I repeat myself.


As I have argued before, actions that are in violation of the laws of war in a situation of war, when committed by individual soldiers, not under order, or as part of a national policy are still considered a war crime.

David T. argued the contrary:

such crimes only become war crimes when either they are committed at the behest of a military commander or national policy, or when the military commander or his superiors knowingly and willfully refuse to punish such crimes when committed, and hence encourage the commission of crime


In David T.'s view in order for a crime to be ‘upgraded’ to a war crime there is a clear chain of command between the commander/national leader and the soldier, if not so then it is a lesser crime not graduating to war crimes.

In my case I was asked to produce the documents that supported my allegations. Although you will find nowhere in the laws of war that points to a distinction as claimed by David T. I proposed the case of Yamamoto. Yamamoto killed a civilian, and therefore the British military court convicted him of a war crime. The prosecutor even stated that:

“ in that he at or about 2300 hours on 12th September, 1945, at Kuala Lumpur contrary to the laws and usages of war killed one Omar a civilian resident of Kuala Lumpur.”[he was convicted and sentenced to death]



David T. Claimed that Yamamoto was actually convicted of violating the terms of capitulation and in that lies his war crime. Few cases exists of people being tried for ’minor’ war crimes, and therefore Yamamoto is a key example to my allegations that in my view proofs my point. The reason why so few cases like Mr. Yamamoto exist is of course due to the difficulty of obtaining evidence after a war of a single murder, rape, theft and that the courts tend to be preoccupied with 'major' war criminals as the ones being tried at IMT at Nuremberg and Tokyo. So allow me to cling on to Mr. Yamamoto and object to David T.’s allegations that the case against Yamamoto can be dismissed as a proof for my case.

But without the transcript from the case, we must now ask ourselves whether Yamamoto was convicted of murder, or whether he was convicted of breaching the terms of capitulation. I will propose that giving someone the death penalty for committing a breach of the terms of capitulation is rather harsh and his sentence in my view points to the murder conviction. If David T. is right in his allegations Yamamoto would be tried for breaching the terms of capitulation, convicted and then his case would have been referred to a Malaysian or Japanese civilian court where he would be tried for murder. No such thing happened – was this due to negligence or was it due to him being convicted of murder by a British military court, where the prosecutor labelled it as war crime?

According to professor of law and expert on the laws of war Howard S. Levie: 'Terrorism in War – the laws of war crime'. Only three cases that were in violation of art. 35 of 1907 Hague regulations (regarding breaching terms of capitulation/surrender) were tried after World War II and all three defendants were Germans: Lothar Eisentrager, Gerhard Grumpelt and Stever Ehrenrich. Mr. Levie does not mention Yamamoto, but let’s assume that Levie declined to notice the case of Yamamoto. The three cases although different set the standards for breaching the terms of capitulation. The Germans received between 5 years – life in prison. So Yamamoto death sentence must relate to the crime of murder and therefore my allegations are proofed right.

Another case of ’war crime’ committed by an individual that unlike Peter Back, was not under order or the assumption that his actions were government sanctioned was Max Scmid.

Max Schmid was a German doctor commanding a dispensary at marquise, France. Shortly before D-Day the body of a dead American airman was brought to him by a German unit tasked with the collection and removal of dead bodies from the battlefield. It was charged that he had

’severed the head of a [dead] american flyer with a saw, boiled the head for several hours, removed the skin and flesh, and bleached the skull in hydrogen peroxide. The skull was later seen on the accused’s desk where it remained until 20 August 1944 at which time the accused sent the skull to his wife in Germany as a souvenir.’ (levie p. 288-289).


Mr Schmid was sentenced to 10 years of imprisonment for war crime. We might start an argument on whether the ’terror flying order’ or the actions in concentration camps of collecting gold teeth from dead inmates can relate to Max Schmids case and that his actions against the dead airman was part of a wider national scheme. But whether Mr. Schmid knew of such actions or whether he interpreted the ’terror flying order’ as also applying to desecration of soldiers’ bodies are highly questionable. Therefore he committed a violation of the laws of war, not under order or part of a ’conspiracy’ or national policy to desecrate soldiers corpses. But I suspect that you will point to that we need to find cases where a crime is not only against international law but also national law. First of all as I will argue below there is no such distinction between national and international law on crimes done by military forces or individual soldiers in a time of war.

The United States Army’s manual The Law of Land Warfare states that:

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.’


According to George s. Prugh: Law at war, Vietnam, 1964-1973, 31 American servicemen were convicted of war crimes during World War II in accordance with the laws of war as expressed in the US army manual (p. 74). I assume without having the individual cases that they were not tried as having taken part in a national policy to commit war crimes.

The international Committee of the Red Cross have officially commented that ’violations of the laws and custom of war are offences against international law and not against the legislation of the detaining power’ (the same would go for national power – that is the power in whose service the perpetrator served when committing the crime).

In the case against Lothar Eisentrager the court ruled that

A war crime however is not a crime against the law or criminal code of any individual nation, but a crime against the ius gentum. The laws and usages of war are of universal application and do not depend for their existence upon national laws and fronties.
Arguments to the effect that only a sovereign of the locus criminis has jurisdiction and that only the lex loci can be applied are therefore without foundation. (levie p. 172)


As you can see in the above ruling, national law has no supremacy over international law, and therefore a crime done in accordance with the laws of war, that is in time of war, cannot be ’degraded’ to national law and in our rape/murder case from France to ’just murder or garden variety crimes’. The laws of war in a time of war has supremacy to national laws. And therefore a ‘simple murder’ done by soldiers in a occupied territory can not be referred to a national court (unless that national court applies the laws of war – in which case it would be a war crime)


In the case of the Einsatzgruppen the IMT reached the conclusion that:
Defence counsel have urged that the responsibilities resulting from international law do not apply to individuals. It is fallacy of no small proportion that international obligations can apply only to abstract legal entities called states. Nations can act only through human beings, and when Germany signed ratified, and promulgated the Hague and Geneva Conventions, she bound each and one of her subjects to their observance. (levie s. 494)


With these arguments in mind, crimes done by individuals apply to international law and international law has supremacy over national law. And since international law forbids a soldier to kill or dishonour a civilian during military operations, when it is not due to necessity of war, then that soldier must be tried in accordance with international law. If it would be the other way around - that crimes done in violation of international law could be tried by national law, we could easily imagine acquittals or reductions in indictments since certain national laws could say, that the case was just manslaughter instead of ’murder’. Fortunately we have now in the majority of states a situation where international law is incorporated into national law. Therefore US military courts would be able to prosecute and convict the soldier who supposedly shot an unarmed prisoner in Faluja, Iraq, for war crimes since the US have incorporated international law into their national law. But if that soldier somehow received a trial that was biased and did not serve justice, he could be subjected to prosecution for war crimes anywhere else in accordance with

REPORT OF THE SECRETARY-GENERAL
PURSUANT TO PARAGRAPH 2 OF SECURITY COUNCIL
RESOLUTION 808 (1993)

PRESENTED 3 MAY 1993
(S/25704):


66. According to the principle of non-bis-in-idem, a person shall not be tried twice for the same crime. In the present context, given the primacy of the International Tribunal, the principle of non-bis-in-idem would preclude subsequent trial before a national court. However, the principle of non-bis-in idem should not preclude a subsequent trial before the International Tribunal in the following two circumstances:

(a) the characterization of the act by the national court did not correspond to its characterization under the statute; or
(b) conditions of impartiality, independence or effective means of adjudication were not guaranteed in the proceedings before the national courts[/code]



To sum up: you don’t need an international court to convict a war criminal, but prosecuting him in a national court does not make him any less a war criminal even if the case was ‘just murder’. Therefore a murder done by a soldier can be prosecuted in a civilian or national court but in a time of war during military operations it is still a war crime, and he would therefore be a war criminal. Just think of the problem if a country at war started to degrade their own war criminals to murder cases, which in your argument would be their right and that command responsibility or magnitude would be the distinction between a murder case and a war criminal case.

I believe that the misunderstanding that have been manifested in this argument stems from the understanding of ’war crime’ as something graver than’ just crime under national law’. For which they are not.


As I have now argued my case, and have presented a number of individual cases in support of my allegation I now ask of you to produce documents that support your position.

Best regards David H.

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Post by Andy H » 30 Jun 2005 23:23

actions that are in violation of the laws of war in a situation of war, when committed by individual soldiers, not under order, or as part of a national policy are still considered a war crime.


I can see the logic in that. The fact that a ommission of a order, or a known national policy or the neglect of superiors to punish, shouldn't limit the accountability to a war crime

Andy H

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Post by David Thompson » 30 Jun 2005 23:44

DXTR -- You said:
David T. Claimed that Yamamoto was actually convicted of violating the terms of capitulation and in that lies his war crime. Few cases exists of people being tried for ’minor’ war crimes, and therefore Yamamoto is a key example to my allegations that in my view proofs my point. The reason why so few cases like Mr. Yamamoto exist is of course due to the difficulty of obtaining evidence after a war of a single murder, rape, theft and that the courts tend to be preoccupied with 'major' war criminals as the ones being tried at IMT at Nuremberg and Tokyo. So allow me to cling on to Mr. Yamamoto and object to David T.’s allegations that the case against Yamamoto can be dismissed as a proof for my case.

I haven't gotten around to making "allegations" about the Yamamoto case yet. That's why, in my post above (at viewtopic.php?p=722702#722702 ), I didn't talk about the case, but instead wrote:
I'll do a little more reading and return to discuss the case of Sergeant Yamamoto.

I noticed that you didn't mention the case of Peter Back in your reply, but instead brought up other cases in support of your argument. Will you concede that Back's case does not prove your contention?

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Post by DXTR » 01 Jul 2005 07:37

In regards to Peter Back, I declined to elaborate on that case, since you insist that it was part of national policy. The reason for refering to Peter BAck in the first place was in order to come up with a case that involved a single murder where no direct responsibility between commander and soldier(civilian) could be established. In regards to Peter Back I don't see it as a support for your allegations or claim (maybe allegation is a poor word - pardon my weak comprehension of the english language) but when reconsidered, it is not a bullet proof evidence in support of my case either.

Best regards

David H.

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Post by David Thompson » 02 Jul 2005 16:41

DXTR -- Having thought about this discussion for some time, I'm still not sure if there is a misunderstanding of the use of terms like "war crime," or whether there is a major conceptual difference involved. For that reason, I'd like to get some of the discussion points clarified.

Your original proposition was:
If a rape or mishandling/murder of a civilian during an occupation was committed by the armed forces, then it is still a warcrime, unless the territory was legally annexed by the occupying power and by that it would make it a civilian criminal murder/mistreatment case. All actions that are in violation of the Laws of War that be the Geneva or Hague conventions are warcrimes, no matter if it was government sanctioned or not. Yes murders happened during the World Wars but that does not make it any more less a crime done during war and therefore a war crime

As a general statement, I agree with the second of the three sentences in this proposition:
All actions that are in violation of the Laws of War that be the Geneva or Hague conventions are warcrimes, no matter if it was government sanctioned or not.

The first sentence in the quote:
If a rape or mishandling/murder of a civilian during an occupation was committed by the armed forces, then it is still a warcrime, unless the territory was legally annexed by the occupying power and by that it would make it a civilian criminal murder/mistreatment case.

is true to some extent, though it is overly broad in my opinion. The "some extent" to which the statement is true turns on the intended meanings of the expressions "occupation," "committed by the armed forces," "legally annexed," and "civilian criminal murder/mistreatment case."

The last sentence I believe is overly broad and inaccurate to the point of being misleading:
Yes murders happened during the World Wars but that does not make it any more less a crime done during war and therefore a war crime


The term war crime has been used in several distinctly different ways:

(1) A violation of the laws of land warfare, as set forth in various international treaties;
(2) In addition to this, a violation of the customs (sometimes referred to as usages) of land warfare;
(3) In addition to these, a violation of other international conventions or customs regarding the onset and conduct of hostilities, and/or the treatment of civilian populations;
(4) A crime committed by or against a member of the armed forces of a country
(5) A crime committed during the course of hostilities;
(6) A crime committed during time of war;
(7) An epithet.

In addition, the laws and customs of war have changed over the years, so it is important to have a time frame for many of the discussions. For example, the Geneva Convention of 1949 substantially added to the acts constituting war crimes, but the enlarged provisions of that convention are anachronistic in a WWII setting.

As I result, I usually ask for posters to be specific when they use the term "war crime," so that the subject matter of the discussion is clear to the participants, and no one has to guess as to what was meant.

In your proposition:
If a rape or mishandling/murder of a civilian during an occupation was committed by the armed forces, then it is still a warcrime, unless the territory was legally annexed by the occupying power and by that it would make it a civilian criminal murder/mistreatment case. All actions that are in violation of the Laws of War that be the Geneva or Hague conventions are warcrimes, no matter if it was government sanctioned or not. Yes murders happened during the World Wars but that does not make it any more less a crime done during war and therefore a war crime

I can't figure out in what sense you are using the word "war crime." The first sentence suggests you mean (1), (2), (3), (4) or (5), or some combination of them. The second sentence is restricted to (1), but is unclear as to which Geneva Convention (1929 or 1949) is meant. The breadth of the third sentence suggests you mean (6).

You went on to say, in response to Andy's question:
Individual soldiers who commit crimes that violates any of the articles under section III can be brought to justice for war crimes. If the authorities or military high command have either sanctioned those crimes or have not taken the proper precautions to prevent such violations can then be brought to justice for war crimes too.

The second sentence here is certainly true. The first, however, is more difficult. The context of your post indicates that you are discussing war crimes as a general subject. The first sentence is restricted to violations of Section III of the 1907 Hague IV Convention -- "Military Authority over the Territory of a Hostile State." The section is applicable when "The authority of the legitimate power [has] in fact passed into the hands of the occupant." The prohibitions are directed, not against individual criminals, but against "the occupant," "the belligerent," and "the occupying power" (my emphases):

Art. 42.
Territory is considered occupied when it is actually placed under the authority of the hostile army.

The occupation extends only to the territory where such authority has been established and can be exercised.

Art. 43.
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

Art. 44.
A belligerent is forbidden to force the inhabitants of territory occupied by it to furnish information about the army of the other belligerent, or about its means of defense.

Art. 45.
It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power.

Art. 46.
Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.

Private property cannot be confiscated.

Art. 47.
Pillage is formally forbidden.

Art. 48.
If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of the State, he shall do so, as far as is possible, in accordance with the rules of assessment and incidence in force, and shall in consequence be bound to defray the expenses of the administration of the occupied territory to the same extent as the legitimate Government was so bound.

Art. 49.
If, in addition to the taxes mentioned in the above article, the occupant levies other money contributions in the occupied territory, this shall only be for the needs of the army or of the administration of the territory in question.

Art. 50.
No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.

Art. 51.
No contribution shall be collected except under a written order, and on the responsibility of a commander-in-chief.

The collection of the said contribution shall only be effected as far as possible in accordance with the rules of assessment and incidence of the taxes in force.

For every contribution a receipt shall be given to the contributors.

Art. 52.
Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country.

Such requisitions and services shall only be demanded on the authority of the commander in the locality occupied.

Contributions in kind shall as far as possible be paid for in cash; if not, a receipt shall be given and the payment of the amount due shall be made as soon as possible.

Art. 53.
An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations.

All appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and, generally, all kinds of munitions of war, may be seized, even if they belong to private individuals, but must be restored and compensation fixed when peace is made.

Art. 54.
Submarine cables connecting an occupied territory with a neutral territory shall not be seized or destroyed except in the case of absolute necessity. They must likewise be restored and compensation fixed when peace is made.

Art. 55. The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.

Art. 56.
The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property.

All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.

For this reason, and under circumstances restricted to the application of this section, an individual can be prosecuted for a war crime only to the extent that he was acting as an agent of "the occupant," "the belligerent," and/or "the occupying power," and only where he violated one of the prohibitions detailed in articles 42-56. The limited applicability of Section III to ordinary ("garden-variety") crimes can be seen from the language of Article 43:
Art. 43.
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

This section contemplates the enforcement by the occupant of its own articles of war, martial law and any laws enacted by the occupying country ("all the measures in his power to restore, and ensure, as far as possible, public order and safety") and the administration of applicable local laws ("respecting, unless absolutely prevented, the laws in force in the country"). There is no suggestion in Section III that a violation of these provisions (the articles of war of the occupying army, the laws of the occupying authority and applicable local law) would automatically constitute a "war crime," nor is there any suggestion that an occupying authority should prosecute individual crimes as violations of the articles contained in Section III.

For example, if a German soldier in the army of occupation in France killed his fellow soldier serving in the German army, it would be a violation of that army's articles of war, or of local law, but it is not necessarily a violation of the laws and customs of war, or of the 1907 Hague IV Convention. If a civilian in the occupied area of France killed another civilian, the crime may be in violation of local law or the laws of the German occupying power, but it is not necessarily a violation of the laws and customs of war, or of the 1907 Hague IV Convention. Consequently, for there to be a "war crime," some other element is necessary.

The same is true in circumstances not amounting to a formal occupation under Section III, as where an American serviceman stationed in Great Britain in 1944 kills a British civilian, or the British civilian kills him. The fact that the crime occurred during a war, or during the course of hostilities, or involved a member of the armed forces does not make the act a war crime. Consequently I don't think that this sentence is accurate:
Yes murders happened during the World Wars but that does not make it any more less a crime done during war and therefore a war crime

The terms "war crime" and a "crime done during war" overlap, but they don't have identical meanings.

The original circumstances of the discussion involved the alleged rape and the actual murder of a member of the French resistance by members of the German armed forces, during the course of the German occupation of France. My fellow moderator Andy H asked if this was a war crime, or just an ordinary crime, and I said that there wasn't enough information to tell, because we didn't know whether the crime(s) were committed by the soldiers in an individual criminal capacity or as agents of the German occupation authorities. I think this distinction is apt.

The act of rape and the act of murder are crimes. The question is whether, under the circumstances, the acts involving Marianne Cohn were war crimes.

(To be continued)

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Post by David Thompson » 03 Jul 2005 04:13

In order to have a war crime, there must be a violation of the laws of war, a violation of the customs or usages of war, or a violation of one or more international conventions or customs regarding the onset and conduct of hostilities, and/or the treatment of civilian populations.

Applying this requirement to the case of the 1944 rape and murder of Ms. Cohn, what do we have?

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.

In support of your position, you referred to Article 6(b) of the Charter for the International Military Tribunal for Germany (Readers can find it at: http://www.yale.edu/lawweb/avalon/imt/p ... t.htm#art6 ), which reads:

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;

This list illustrates the acts which, if found to be violations of the laws or customs of war, will be punished. It does not stand for the proposition that every act of murder or ill-treatment is also a war crime.

In support of your theory that the "garden variety" criminal act of an individual can be a war crime, you argued the cases of 3 men: Peter Back (a civilian, accused of killing a POW), Chusaburo Yamamoto (a Japanese Army sergeant, accused of killing a Malay civilian) and Max Schmid (a German doctor who, while commanding a dispensary in France, undertook to steal the head of a dead American airman as a souvenir).

I have already discussed the case of Peter Back, and why the murder he committed could be treated as a war crime rather than a "garden variety" killing.

Judging from the UN War Crimes Commission report of his trial, the charge against Sergeant Yamamoto was a killing which took place during "a breach of the terms of the convention for capitulation" while serving as a member of the Imperial Japanese armed forces (my emphases):

This submission that, on a charge of killing, it need not be proved that an alleged war criminal had committed murder as defined by English law is reminiscent of the advice rendered by the Legal Member in the Essen Lynching Case, to the effect that a charge of killing in a war crime trial was not one of murder, that is to say of a “killing of a person under the King’s peace.” (Footnote 1: See Volume I of this series, p. 91)

The Prosecutor went on to state that the alleged offence took place at a time when, although open hostilities had ceased, the Japanese were still armed and in control of certain areas “pending the consummation by surrender of their capitulation.” War did not end with the mere cessation of hostilities, and any violation of the Laws and Usages of War committed during the process of surrender and disarming was as much a war crime as one committed at the height of battle; all the more so if the act was a breach of the terms of the convention for capitulation.

In other words, the only reason that this killing was treated as a war crime, and not a "garden variety" murder, is that it was also "a breach of the terms of the convention for capitulation," and at the time of the killing Sergeant Yamamoto was acting in an official capacity and in the course of his duties as a warehouse guard for the Imperial Japanese Army.

So Sergeant Yamamoto's case does not prove your point either.

That gets us to the case of Max Schmid. You did not provide the specific war crime with which Dr. Schmid was charged, but it clearly wasn't murder. Dr. Schmid took custody of the body of the dead American airman in his official capacity as commander of the German dispensary. Mutilating the dead bodies of enemy troops has long been a violation of the customs of war, and article 19 of the annex to the 1907 Hague IV Convention requires (my emphases):

Art. 19.
The wills of prisoners of war are received or drawn up in the same way as for soldiers of the national army.

The same rules shall be observed regarding death certificates as well as for the burial of prisoners of war, due regard being paid to their grade and rank.

In his capacity as dispensary commander Dr. Schmid was acting as the agent of the German armed forces when committing the crime, and was punished as any other armed forces commander who, on his own authority, commanded or committed a violation of the laws or customs of war.

So Dr. Schmid's case doesn't prove your point either.

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Post by Peter H » 03 Jul 2005 05:26

This might be of interest.Theodor Meron's view on things and furthermore "crimes against humanity."


Let us distinguish here, not in a legal sense, but in a political sense,between “war crimes” and “crimes against humanity” in its many variants. Theodor Meron, Charles L. Denison Professor of Law at the New York University School of Law and an international authority on war crimes distinguished “warcrimes” from “crimes against humanity” in a 1993 article in Foreign Affairs. In Meron’s words, war crimes are “grave breaches” of the fundamental norms of war by gross mistreatment of captured enemy combatants by killing, torture, unlawful deportation or transfer and other such heinous acts that are “not justified by military necessity and carried out unlawfully and wantonly.” Crimes against humanity (as defined in the Nuremberg Charter) include inhumane acts such as murder, extermination, enslavement, or deportation committed against civilian populations.The distinction between acts of war and crimes against humanity would seem clearer than the distinction between acts of war and war crimes. The former is a distinction between the waging of war by officially designated combatants against unarmed civilians and the latter is a distinction between the waging of war by two officially designated sets of combatants, one of which surrenders itself or is captured by the other. But things are not that simple....


http://www.stratnet.ucalgary.ca/publica ... ov2001.pdf

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Post by David Thompson » 03 Jul 2005 05:43

Thanks for the link, Peter H. I thought the article was quite interesting.

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John W
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Post by John W » 03 Jul 2005 09:12

This has been a VERY interesting and informative thread gentlemen.

My thanks to you all.

regards,
:)

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