For almost as long as there has been the war, attempts have been made to regulate its conduct. However, it took until the 20th century for the legal concept of “war crime” to emerge. Thanks to a series of multilateral treaties, including the Geneva Conventions, military and political leaders can now be prosecuted when they commit atrocities ranging from torture to the targeting of civilians.
Even in ancient times, warfare was rarely fought completely without limits. Aristotle, for example, defined his parameters for a “just war”. And, although fighting could be brutal between Greek city-states, enemy soldiers usually gave each other a proper burial.
In ancient India, meanwhile, the so-called Code of Laws of Manu forbade poisoned and flaming weapons, as well as the killing of captives, while the Muslim armies of seventh-century Arabia were also keen to spare the prisoners of war. Later, some European monarchs like King Charles VII of France, who reigned during the time of Joan of Arc, tried to curb battlefield excesses such as looting.
Very few of these restrictions have been written down. For the most part, the war was governed by “unwritten norms and codes of behavior and notions of chivalry and that sort of thing,” says David Bosco, associate professor of international studies at Indiana University. and author of “Summary Justice: The International Criminal Court in a World of Power Politics.”
Abraham Lincoln publishes the Lieber code
Change finally came in the 19th century, when countries began to codify the conduct of their armies. U.S. President Abraham Lincoln, for his part, issued the so-called Lieber Code in 1863. Named after its primary author Francis Lieber, a professor at Columbia Law School, the Lieber Code taught Civil War commanders how deal with runaway slaves and Confederate prisoners of war. . (Among other things, he also prohibited the killing and maiming of noncombatants, but not their enslavement by starvation.)
As Bosco points out, the Lieber Code “has become very influential internationally”. In fact, Prussia, the Netherlands, France, Switzerland and Spain were among the countries to issue similar military directives as a result.
At the same time, a movement was born to establish international rules of combat that all countries would adhere to (hypothetically). In 1856, the Paris Declaration on Maritime Law, which prohibited racing, became the first multilateral treaty to restrict wartime practices, and it was followed by the Geneva Convention of 1864, considered the basis of the international humanitarian law, which covered the treatment of the sick and injured. soldiers.
Four years later, the Declaration of Saint Petersburg banned one type of explosive bullet, while the Hague Conventions of 1899 and 1907 further defined acceptable military conduct.
At this point, the legal concept of “war crimes” still did not exist, nor was there a mechanism to prosecute war criminals internationally. After World War I, however, the Allies prepared to bring charges against hundreds of suspected war criminals, including the deposed German Kaiser Wilhelm II, whom they accused of having committed a “supreme offense against the international morality and the sanctity of treaties”.
It never came to fruition: Wilhelm fled to the Netherlands, which refused to extradite him, and no international war crimes trial ever took place. In 1921, a few defendants appeared in German court, but none received more than a short sentence.
WATCH: World War I: The First Modern War on HISTORY Vault
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After the Second World War: international criminal tribunals deal with war crimes
Determined not to make the same mistake after World War II, the Allies convened the first-ever international criminal tribunals in Nuremberg and Tokyo, at which dozens of German and Japanese leaders were indicted for war crimes, as well as of “crimes against peace”. and “crimes against humanity”. Almost all of the defendants were found guilty and 19 were sentenced to death.
“One of the main innovations of Nuremberg was to hold German leaders accountable for crimes committed against their own citizens,” and not just against the citizens of other countries, says Susana SáCouto, director of the War Crimes Research Office at the American University’s Washington College of Law.
Further clarity regarding war crimes came with the 1949 Geneva Conventions, which established specific protections for civilians, prisoners of war, shipwrecked sailors, medical personnel, and sick and injured soldiers. Ratified by every UN member state, “they remain the most important document for interpreting what constitutes lawful conduct during armed conflict,” says Bosco.
After the Nuremberg and Tokyo trials, efforts to punish war criminals internationally went into a half-century “hibernation,” Bosco says, though he points out that individual countries filed scattered files during this period. Then, in 1993 and 1994, the United Nations created tribunals to prosecute war crimes in the former Yugoslavia and Rwanda, respectively.
2002: creation of the International Criminal Court
This begs the question, Bosco explains, of why separate courts have been created for each situation “rather than a permanent institution that is simply ready to deal with these crimes when they arise”. Multilateral negotiations followed, and in 2002 the International Criminal Court came into being. Since then, he has brought 31 cases, all against defendants in Africa (although investigations are also underway elsewhere in the world).
Most recently, in March 2022, the ICC Chief Prosecutor announced an investigation into the Russian invasion of Ukraine. (In a separate decision, the US Senate convicted Russian President Vladimir Putin of alleged war crimes.)
What is a war crime?
Despite some small differences of opinion between countries, Bosco says there is now a broad consensus on what constitutes a war crime. Drawing heavily on the 1949 Geneva Conventions, as well as a 1977 update, the statute governing the ICC contains a long list of war crimes, including torture, willful killing, willfully causing great suffering, mass destruction of property, taking of hostages, intentionally directing attacks against civilians. , the intentional direction of attacks against humanitarian workers, the misuse of a flag of truce, looting, sexual violence, the conscription of children and the use of poisoned weapons.
SáCouto adds that to be a war crime, there must be an armed conflict, not just demonstrations or riots.
Many of the highest-profile cases are now heading to the ICC, which sees itself as a court of last resort. “They didn’t want to move the national courts,” Bosco says. “They wanted governments to have the responsibility to initiate these prosecutions themselves.”
Ideally, the existence of the ICC deters potential war criminals. Yet even staunch supporters of the court recognize certain imperfections. Neither the United States nor China are among the 123 member states. Russia and Ukraine are also not members, although in recent years Ukraine has given the court ad hoc jurisdiction over its dispute with Russia.
Some accused war criminals, such as former Sudanese President Omar al-Bashir, have not yet been handed over to the ICC. For others, like Ratko Mladic, an army general nicknamed the “Butcher of Bosnia” – who was tried in the Yugoslav court – sentencing can take decades. “But that’s not a good reason not to go ahead,” says SáCouto. “It might just take a while.”