This article first appeared in the War Crimes Times.
The History of War Crimes
by Peter Dyer
On June 13, 1899 one of the largest battles of the Philippine-American war took place on the southern outskirts of
Manila. After several hours of fierce fighting at the Zapote River Bridge, 5000 poorly armed Philippine soldiers were
outgunned and routed by 3000 Americans.
Including guerilla conflict and the Moro Rebellion this war dragged on for 14 years
By 1913 between 4000 and 5000 American soldiers had died. Estimates of Philippine military deaths run from
12,000 to 20,000. There were massive civilian deaths from starvation and disease due to scorched earth campaigns and
forced relocation. Estimates of civilian deaths in the Philippine-American war range from 200,000 to 1,400,000.
As the battle of Zapote Bridge raged, the world’s first international peace conference was in full swing 10,000
kms away at The Hague in Holland.
On July 4, exactly three weeks after the carnage near Manila, Andrew White, the United States Ambassador to the
Hague Peace Conference, laid a silver wreath at the tomb of Hugo Grotius, the 17th century “father of international
law.” He said: “From this tomb of Grotius I seem to hear a message to go on with the work of strengthening peace and
humanizing war.”
The contradiction involved in the effort to apply law to war-the ultimate expression of lawlessness-is so stark
the enterprise sometimes seems by nature doomed to failure. As Ambassador White unintentionally highlighted the gap
between uplifting rhetoric and brutal reality, he could not have expressed more succinctly the enormous challenge
inherent to the evolution of the law of war.
As White noted, Hugo Grotius was the first to express a comprehensive and detailed vision of the regulation of
armed conflict by international law. In De jure belli ac pacis libri tres (On the Law of War and Peace: Three books) 1625, he proposed that “…there is a common law of nations which is valid alike for war…” Conduct discussed in De Jure ranges from fundamentals such as “The Right to Kill in a Lawful War” where he advises “moderation in laying waste and
similar things” through hostage-taking and care; truces; “ruses and falsehoods” and the right of safe passage in a
section on good faith between enemies, even including safe conduct of baggage.
There was plenty of war, but few subsequent advances in the law of war until the mid 19th century.
In 1859 Swiss businessman Jean Henri Dunant witnessed the gruesome aftermath of the savage battle at Solferino
in present day northern Italy. His efforts to establish an international organization for relief and care of those
wounded in battle, regardless of nationality, led to the establishment of the International Red Cross. This was
formalized on August 22, 1864 by the first international humanitarian law treaty-the Geneva Convention for the
Amelioration of the Condition of the Wounded in Armies in the Field.
While the Red Cross was emerging out of European conflict, the American Civil War gave rise to the Lieber Code.
In April 1863, Columbia University Professor Francis Lieber prepared “Instructions for the Government of Armies of the
United States in the Field” at the request of Union General Henry Halleck. The Lieber Code was essentially a working
manual that aimed to provide a practical framework for day-to-day ethical conduct of war. In this sense, its focus was
considerably more broad than that of the Geneva Convention.
Unlike the Geneva Convention, the Lieber Code prescribed specific punishment for violations, including death.
And although it allowed starvation of unarmed belligerents (Article 17) the Lieber Code was noted for its general
ethical treatment of civilian populations and prisoners of war.
It seems highly likely that Lieber, a scholar of law and ethics, born and educated in Germany, was influenced by
the work of Grotius. For example, Article 40 refers to “… that branch of the law of nature and nations which is called
the law and usages of war on land.”
The Hague Conventions of 1899 and 1907 were the first international agreements to specifically prohibit a wide
range of weapons and tactics in war.
Poisons-especially poison gas-were forbidden. “Arms, projectiles, or material of a nature to cause superfluous
injury”; “bullets which expand or flatten easily in the human body” and projectiles and explosives launched from
balloons also made the list.
As Ambassador White noted, the work at The Hague built on foundations laid by Grotius. It is likely that the
Lieber Code played a role as well. Humane treatment of prisoners of war was a priority. Specific situations and tactics
were either permitted (such as ruses) or prohibited (such as pillage).
In addition the Hague Conventions specifically incorporated the 1864 Geneva Convention.
The Hague Conventions seem to have brought together and developed further the bulk of the most enduring
contemporary principles of the law of war. The result was a significant advance in international law.
One important principle, however, was absent: Professor Lieber’s perspective of violations as crimes with
corresponding punishments.
Because the legal authority of the Conventions was seen as flowing from their status as treaties between states,
the only responsibility for treaty violations on the agenda was the collective responsibility of the State. So, despite
the terrible personal and communal violence that was the subject matter of the Conventions, the only remedies envisioned
were similar to those provided in contract law: mediation, commissions of inquiry and a permanent court of arbitration.
Given the issues of state sovereignty arising from a multinational pact, this is not surprising. But even with
the remedies available, consistent and fair enforcement depended entirely on the willingness of the most powerful
nations to submit to the will of those less powerful.
In other words, there were no teeth. It was easy for powerful nations to proclaim dedication to the rule of law
and to the highest humanitarian principles, whatever the reality.
And no persons of any rank, low or high, were to be held responsible for any of the outrages the Hague
Conventions aspired to prevent.
Less than seven years after the 1907 Hague Convention was signed, the industrial slaughter of World War I began.
The shock of 15,000,000 military and civilian deaths undoubtedly contributed to what was probably the first use of the
language of criminal law in the international law of war.
Articles 227 of the 1919 Versailles Treaty, which formally ended the war, called for no less than the arrest and
public trial before an international tribunal of the defeated German Emperor, Kaiser Wilhelm II, for “a supreme offence
against international morality and the sanctity of treaties.” and to “fix the punishment which it considers should be
imposed.”
In addition, Article 228 called for the trial “before military tribunals of persons accused of having committed
acts in violation of the laws and customs of war. Such persons shall, if found guilty, be sentenced to punishments laid
down by law.”
However, Holland, home of the Hague Conventions, refused to extradite the Kaiser and he was never tried.
Although a few Germans of lesser rank were eventually tried under Article 228 by German courts in Leipzig, the process
was crippled by controversy among Allied observers and widespread, vehement German opposition. A good portion of this
controversy sprang from the radically new idea of individual criminal responsibility for acts of war.
Ten years after the fighting stopped the trauma of the “war to end all wars” was still fresh. In 1928 fifteen
nations, including Germany, signed the General Treaty for the Renunciation of War (Kellogg-Briand Pact or Paris Pact).
The Paris Pact was short, clear and unqualified. It condemned “recourse to war for the solution of international
controversies”.
Although there were no sanctions provided for violation, the treaty can be seen as perhaps the first significant
effort to go beyond various acts of war and address the source of all such acts: aggressive war.
Seventeen years later in 1945, 50 million more deaths from another World War brought a momentous leap in law.
Aggressive war (along with war crimes and crimes against the peace) was formally criminalized, with individual
responsibility, in the charter of the first international criminal tribunal-the International Military Tribunal at
Nuremberg, Germany.
Twenty-two of the most powerful Nazis were tried. Nineteen were convicted of one or more of the IMT Charter
crimes. Twelve received death sentences.
Delivered on October 1, 1946, the Tribunal judgment invoked both the Paris Pact and the 1907 Hague Convention,
essentially establishing violations of these treaties as crimes. “In the opinion of the Tribunal, the solemn
renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal
in international law.”
World War II and Nuremberg provided a catalyst for a few years of accelerated development of the law of war.
Just ten weeks after the Nuremberg judgment the United Nations General Assembly passed Resolution 95(1) “Affirmation of
the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal.”
The next year, the General Assembly adopted resolution 174 (II) establishing the International Law Commission
(ILC) for the “promotion of the progressive development of international law and its codification.”
In December 1948 the General Assembly passed Resolution 260 (III), the Genocide Convention, recognizing that
genocide is an international crime and providing a precise definition.
In Part B of Res. 260 the General Assembly invited the ILC “…to study the desirability and possibility of
establishing an international judicial organ for the trial of persons charged with genocide, or other crimes over which
jurisdictions will be conferred upon that organ by international conventions.”
Eight months later, in August 1949, the international community modified the Geneva Convention of 1864 and
significantly expanded international humanitarian law, adopting three more conventions relating to those wounded in war
at sea, prisoners of war and civilians. Two protocols protecting victims of international and national conflicts were
added in 1977.
Today these conventions provide the foundation of international humanitarian law.
The efforts of the ILC and others to establish an “international judicial organ” were essentially frozen during
the Cold War. Forty-one years after UNGA Res 260 the General Assembly asked the ILC to “address the question of
establishing an international criminal court” (Res 44/39, 1989) with a specific purpose: interdicting international drug
trade.
During the 1990s the horrors of war crimes and genocide in Yugoslavia and Rwanda resulted in the establishment
of temporary international criminal tribunals. The need for a permanent and broadly focused International Criminal Court
as envisioned in 1948, became more urgent. Eventually, on July 17, 1998 the Statute of the International Criminal Court
was signed in Rome.
Ironically, the United States, which led the way at Nuremberg, voted against the ICC Charter, along with China,
Libya, Iraq, Israel, Qatar, and Yemen. Resistance was especially strong in the U.S. Senate where Senator Jesse Helms
declared the treaty “… will be dead on arrival when it reaches the Foreign Relations Committee. Let us close the casket
right now…”
Since then the U.S. has not only refused to participate but has actively resisted and attempted to undermine the
ICC.
Since the time of Hugo Grotius there has been considerable progress in the evolution of the law of war. However,
110 years after the first Hague Convention and the Battle of Zapote Bridge, the problem of enforcement ensures that the
stark contrast between noble words and savage violence is still very much with us.
Although 139 nations have signed the Rome Statute and 108 are full Parties, without the support of the world’s
richest and most powerful country, the ICC faces an uphill struggle. In the mean time, as Michael Scharf pointed out to
Senator Helms: “We have lived in a golden age of impunity, where a person stands a much better chance of being tried for
taking a single life than for killing ten thousand or a million.”
The law of war will continue to evolve because there is no civilized alternative. As Hugo Grotius wrote nearly
four centuries ago: “For when treaties have been done away with it will follow that all peoples will wage unending wars
with one another.”
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Peter Dyer is a freelance journalist. He and his wife moved to New Zealand from the US in 2004. They are dual NZ/US
citizens.