War crimes and military justice

Overview

Humans have committed war crimes against one another since wars were fought with clubs and stones, and for centuries war crimes were accepted as part of the horrendous price of waging war. As war evolved, so did a body of treaties and laws that sought to regulate the treatment of soldiers and civilians involved in war. The Hague Conventions were international treaties negotiated at the First and Second Peace Conferences at The Hague, Netherlands, in 1899 and 1907, and were, along with the Geneva Conventions, among the first formal statements of the laws of war and war crimes in international law. Article 147 of the Fourth Geneva Convention defines war crimes as:

Willful killing, torture or inhuman treatment including . . . willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person of the rights of fair and regular trial, . . . taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

International lawyers stipulate that this is the basic definition of war crimes.

Since war crimes are associated with war, military tribunals or military commissions are used to try people in military custody or those accused of violating a law of war. Courts-martial generally have jurisdiction over members of their own military. Military tribunals usually provide quick trials under the conditions of war, but critics say these trials occur at the expense of justice. Military tribunals do not satisfy most protections and guarantees of the US Bill of Rights, but many presidents of the United States have used them and Congress has authorized them.

Significance

World War II brought sweeping changes to populations and places and new definitions and understandings of war crimes. This global conflict transformed the concept of war crimes, necessitating a practical means of defining them and determining the punishments for them. Chief among the reasons for this transformation were the Nazi murders of seven million people, mainly Jews, and the Japanese murders and mistreatment of both civilians and prisons of war. The Allied powers prosecuted the Nazis for their war crimes at the Nuremberg Trials in 1945 and 1946, and twelve Nazi leaders were executed as a result. Japanese perpetrators were also tried, in Tokyo in 1948, and seven Japanese commanders were hanged, although Japanese emperor Hirohito was excluded from the prosecutions.

The idea that an individual can be held responsible for the actions of a country or that nation’s soldiers is the core concept of war crimes. Genocide, crimes against humanity, and mistreatment of civilians or combatants during war all fall under the category of war crimes, with genocide being the most severe of these crimes. The trials at Nuremberg and Tokyo set the precedents for the cases that the modern-day tribunal in The Hague hears.

Since World War II, the issue of war crimes has become even more pressing with the outbreak of smaller wars all over the globe. The United Nations established tribunals to try crimes against humanity in the former Yugoslavia and in Rwanda. The US Senate, on March 13, 1998, unanimously passed a resolution urging the United Nations to create a tribunal to indict and try Saddam Hussein as an international war criminal for “his crimes against humanity.” Congress also passed the War Crimes Act of 1996, which defines and punishes offenses against the law of nations and violations of both the Geneva and Hague conventions. This US law granted jurisdiction over these war crimes to federal district courts but did not intend for the act to override the long-standing jurisdiction of American military commissions and general courts-martial over war crimes.

History of War Crimes and Military Justice

Ancient World

The ancient world did not have a codified definition of war crimes. The nature of warfare guaranteed that war crimes were committed in almost every war fought, and both religious and civil leaders were often guilty of war crimes, at least by their modern definition.

The Massacre of Thessalonica provides one example. In 390 CE, the citizens of the Greek city Thessalonica rose in revolt against the ruling Romans, and Emperor Theodosius I took immediate action. The flash point of the uprising occurred when Botheric, a Gothic general in the emperor’s army, ordered a popular charioteer arrested for trying to seduce a servant of the emperor or the general himself. The charioteer went to prison, but the citizens of Thessalonica demanded his release. In the following chaos, Botheric was killed, and then the emperor intervened and ordered executions. The emperor’s intervention came too late, and angry Gothic troops massacred seven thousand people in Thessalonica’s hippodrome.

This event exemplifies issues that modern theorists of war crimes and debaters over the power of military tribunals are still addressing: How should retaliatory actions during war be defined, and who should determine the punishment of the perpetrators? Theodosius I ruled Rome, but according to the Catholic Church, he had to answer to the Supreme Being. In fact, the Church excommunicated Theodosius I and readmitted him to the Eucharist only after he had spent several months in public penance.

Medieval World

During medieval times, either kings or military commanders in charge of campaigns issued ordinances of war, which laid down the ground rules governing conflicts. Many of these ordinances dealt with matters that might in later centuries be considered to be war crimes. For example, in 1385, Richard II of England set out in his Durham Ordinances rules that prohibited robbery, pillage, and the killing or capture of unarmed persons belonging to the Church and of unarmed women. In 1419, Henry V put out his Mantes Ordinances, which barred soldiers from entering a place where a woman was lying and prohibiting them from robbing women. Lower-class tenant farmers were protected, and the capture of children below the age of fourteen, unless they were the children of persons of rank (because they would bring a high ransom), was also prohibited. Not all monarchs or lords were so inclined to limit the activities of their soldiers, and such ordinances were issued only on a case-by-case basis.

Modern World

In the twentieth century, “war crimes” have come to be defined by international conventions, the Geneva Conventions and the Hague Conventions, which had evolved over the course of the late nineteenth and early twentieth centuries. Following World War II, the atrocities perpetrated by aggressor states reached not only international proportions but also levels of inhumanity that offended most modern human sensibilities. Hence, in the 1950s and later, the Geneva Conventions were refined to define war crimes and their prosecution, and the International Criminal Court (ICC) at The Hague was set up to hear tribunals involving those who have perpetrated “ethnic cleansing” and other atrocities.

Even democratic governments can be guilty of genocide and war crimes. The Trail of Tears—the forced relocation of American Indians from their homelands in the southern United States to Indian Territory (present-day Oklahoma) in the western United States—is a significant example. In 1831, the Cherokee, Chickasaw, Choctaw, Creek, and Seminole tribes, together known as the Five Civilized Tribes, were living as autonomous nations in the American South. By 1839, with the Cherokee removal, all of them had been forced to walk hundreds of miles west to live on reservations in Indian Territory.

President Andrew Jackson pressured the Cherokees to sign a removal treaty. Jackson’s successor, Martin Van Buren, imposed the terms of the treaty by allowing Georgia, Tennessee, North Carolina, and Alabama to raise an armed force of seven thousand troops, composed of militia, regular army, and volunteers. General Winfield Scott (later famous for his role in the Civil War) led the army, which rounded up thirteen thousand Cherokees and forced them to march more than one thousand miles—mostly on foot and without shoes, moccasins, or adequate clothing—to face the harsh winter weather of the Indian Territory. Approximately fifty-five hundred Cherokees died during this trek, now called the Long March (1834–35).

During these tumultuous times, the Cherokee John Ross (1790–1866) proved to be the dominant spokesperson for his people. Of about seven-eighths Scottish ancestry, Ross had grown up in Cherokee and frontier American environments and had earned great wealth and an elite place in the Cherokee Nation. He represented the Cherokee Nation to the US government, especially in the Cherokees’ cases before the Supreme Court. Ross’s life and career shone a glaring spotlight on many nineteenth-century European American assumptions about American Indians and race, revealing the willingness of White American citizens, as well as the US government, to engage in war crimes and de facto genocide before modern definitions of war crimes identified their acts as such.

Another war, the American Civil War (1861–65), highlighted the uneven relationships between war crimes, military tribunals, and practical applications of justice. Samuel Alexander Mudd (1833–83), a physician, practiced medicine in Maryland and in 1865 was implicated and imprisoned for aiding and conspiring with actor John Wilkes Booth and others in the assassination of President Abraham Lincoln. Lincoln had used the exigencies of war to justify suspending the writ of habeas corpus and allowing controversial, and some claimed illegal, military tribunals to try both civilians and soldiers. In an ironic twist of history on May 1, 1865 (about two weeks after Lincoln was assassinated), President Andrew Johnson authorized one of the controversial tribunals to try the assassins. Historians agree that Dr. Mudd knew Booth well, and some believe that Mudd knew about and actively participated in the conspiracy. The authorities arrested Mudd, and the military tribunal, mostly based on circumstantial evidence, found him, along with seven others, guilty of conspiracy to murder Lincoln. Mudd was sentenced to life imprisonment at Fort Jefferson, 70 miles west of Key West, Florida, in the Gulf of Mexico. President Johnson pardoned Mudd on February 8, 1869, partially because of his heroic efforts to fight a yellow fever epidemic in the prison.

The story of Lieutenant William Calley, a US Army officer who was found guilty of ordering the My Lai Massacre on March 16, 1968, during the Vietnam War (1961–75), illustrates the potent and potentially disastrous mixture of political expediency and justice. Born in 1943 in Miami, Florida, William Laws Calley Jr. enlisted in the US Army in July 1966. He arrived in Vietnam in 1967 as a second lieutenant of infantry and was the leader of First Platoon Company C, First Battalion, Twentieth Infantry of the Twenty-third Infantry Division of the United States. On March 16, 1968, Calley ordered his men to kill everyone in the village of My Lai, a small Vietnamese village. In the ensuing bloodbath, the soldiers killed at least five hundred villagers, mostly women and children. Calley was court-martialed in November 1970, and as his defense claimed that he was following the orders of his immediate superior, Captain Ernest Medina. In March 1971, the jury convicted Calley of the premeditated murder of twenty-two Vietnamese civilians and sentenced him to life imprisonment at hard labor. Medina was acquitted.

Twenty-six officers and soldiers were initially charged for their part in the My Lai Massacre, but Calley was the only one convicted. Many Americans were outraged at his conviction and believed that the court-martial had not been just. On April 1, 1971—the day after Calley’s sentencing—President Richard Nixon ordered Calley transferred from prison to house arrest at Fort Benning, pending appeal of his sentence. Secretary of Defense Melvin Laird protested this leniency, and the prosecutor, Aubrey Daniel, wrote, “The greatest tragedy of all will be if political expedience dictates the compromise of such a fundamental moral principle as the inherent unlawfulness of the murder of innocent persons.”

After more military interventions and another review by President Nixon, Calley served only three years of his sentence. Judge J. Robert Elliott of the federal district court granted him habeas corpus on September 25, 1974, along with immediate release, and further reviews and appeals upheld the habeas corpus writ. Some legal arguments contend that the outcome of the My Lai courts-martial reversed the Nuremberg and Tokyo war crimes tribunals, which set a historic precedent by establishing the principle that no one can use “following orders” as a defense for committing war crimes. The New York Times quoted Secretary of the Army Howard Callaway as stating that Calley’s sentence was reduced because he (Calley) honestly believed that he was following orders. This reasoning directly contradicts the standards of the Nuremberg and Tokyo war crimes tribunals, which executed German and Japanese soldiers for murdering civilians.

The United States’ invasion of Iraq in 2003 applied another wartime litmus test of the Geneva Conventions. In 2004, stories of physical, psychological, and sexual abuse of prisoners began to surface from the Abu Ghraib prison in Iraq, including a 60 Minutes II news report and a New Yorker article by Seymour Hersh. The personnel of the 372nd Military Police Company of the United States Army and other government agencies were identified as the perpetrators.

Donald Henry Rumsfeld (born 1932), an American businessperson, served as the thirteenth secretary of defense under President Gerald Ford and the twenty-first secretary of defense under President George W. Bush (2001–06). When the stories about Abu Ghraib broke, he addressed the Senate Armed Services Committee on May 7, 2004:

These events occurred on my watch. As secretary of defense, I am accountable for them. I take full responsibility. It is my obligation to evaluate what happened, to make sure those who have committed wrongdoing are brought to justice, and to make changes as needed to see that it doesn’t happen again. . . . To those Iraqis who were mistreated by members of U.S. armed forces, I offer my deepest apology. It was un-American. And it was inconsistent with the values of our nation.

In 2018, United Nations investigators released a report that accused the military coalition led by Saudi Arabia and the United Arab Emirates, as well as Houthi rebels, of actions that may amount to war crimes against Yemen civilians. The report stated that Saudi and Emirati air strikes had killed at least 6,600 civilians in residential areas, places of worship, markets, and medical facilities between 2015 and 2018, while Houthi rebels had targeted civilians and recruited children soldiers. In addition, investigators claimed that there was little evidence that any parties involved attempted to minimize civilian casualties. The report was delivered to the United Nations Human Rights Council in September 2018 for deliberation. Experts warned several countries, including England and the United States, that continuing to provide arms to Saudi Arabia could potentially implicate them in any future war crimes charges. While in 2019 the council voted to extend the investigation into war crimes in Yemen, a 2021 vote saw the council reject renewal of the investigation mandate.

By the beginning of the 2020s, as new hostilities and wars erupted that warranted international claims of human rights violations worthy of investigation, older conflicts and accused perpetrators continued to be reviewed in the context of justice. Many, particularly survivors, lauded the beginning in April 2022 of the ICC trial of Ali Kushayb, a man believed to have been a leader of the militia that had been accused of committing human rights violations in the Darfur region during the longtime phase of the Sudanese civil war that had started in the early 2000s. Backed by the Sudanese government, the militia was internationally held responsible for the deaths of hundreds of thousands, and Kushayb became the first individual tried for the suspected war crimes that took place. Meanwhile, other groups and international leaders accused Russia of perpetrating war crimes against civilians in Ukraine following its invasion of the country in February of that year, and an investigative team appointed by the UN Human Rights Council had reported the occurrence of such instances. At the same time, in 2022 human rights violations were reported to the council on behalf of civilians in Myanmar (Burma), which had fallen again under military power following a 2021 coup.

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