There never was a good war or a bad peace.
Benjamin Franklin, Letter to Josiah Quincy, September, 1773
A Note To The Reader: This interactive text contains hyperlinks both to complete copies of important document found at other sites and to abridged versions of the same document on this site. Those abridged versions are noted after the first link as "abridged." They have been provided for the convenience of the reader interested in substantive versions of treaties but absent information regarding such matters as structure of secretariats and provisions for entry into effect. The text is color coded as follows:
A Note To The Law Of War Student: Particularly relevant sections of underlying case readings are yellow highlighted. The student is, however, expected to at least be familiar with the entire reading. Where the case title is highlighted, as in Yamashita, the student is expected to read carefully the entire case.
A Note to German Students: To facilitate your understanding I have included German language texts of treaties where available. The hyperlink will be identified by the words "German language version."
If war is truly Clausewitz's "nothing but the continuation of politics with the addition of other means," [Der Kreig ist nichts als eine Fortsetzung der politschen Verkehrs mit Einmischung anderer Mittel] Vom Kreig (1812), then it is not surprising that political relations among belligerents often retain some usefulness.
|Although the outbreak of war brings all ordinary intercourse between belligerents to an end and closes the official means of communication by diplomatic channels, it is on occasions unavoidable--and often convenient--for commanders to open direct communication with the enemy for military purposes.|
Hersch Lauterpacht, British Manual Of Military Law, Part III, § 386 at p. 121.
|The time has come to move forward at the conference table toward an early resolution of this tragic war. You will find us forthcoming and open-minded in a common effort to bring the blessing of peace to the brave people of Vietnam. Let history record that at this critical juncture, both sides turned their face toward peace rather than toward conflict and war.|
Private letter from Richard M. Nixon to Ho Chi Minh, July 15, 1969.
|Here was a group of men who had made violence and guerilla war their profession; ... But in meeting with the representative of the strongest power on earth, they were subtle, disciplined and infinitely patient. Except for one occasion -- when, carried away by the early success of the spring offensive of 1972, they never showed any undue eagerness, they never permitted themselves to appear rattled.|
Henry Kissinger, White House Years, (Little Brown, 1979) at p. 279 (describing secret negotiations with representatives of the Democratic Republic Of Vietnam).
|Foreign policy demands scarcely any of those qualities which are peculiar to a democracy; on the contrary it calls for the perfect use of almost all those qualities in which a democracy is deficient. Democracy ... cannot combine its measures with secrecy or await their consequences with patience. These are qualities which are more characteristic of an individual or an Aristocracy.|
Alexis de Tocqueville, Democracy in America.
|Questions To Consider About Relations Among Belligerents|
|10.1.1 Communications among belligerents are often conducted using "back Channel" diplomatic means. Often, the public statements of the participants are at odds with what they say privately. Analyze the value of such conduct taking into account the right of the general public in the warring states to know facts which affect their most basic rights and obligations, and the need to conduct negotiations outside the pressures inherent in public disclosure. How do you justify your conclusion?|
|10.1.2 Certain goods and persons may travel between hostile states. For example, medical supplies necessary for civilian treatments may be supplied or permitted safe passage. Various states have created various means for controlling and limiting that traffic (for example the British Admiralty's "Navcert" system in World War II). There has been an increased unwillingness to accept civilian harm resulting from limitations on food and medical supplies (in for example, the continuing embargo against Iraq). How, in light of that development, should a belligerent deny its opponent those goods necessary to carry on the conflict?|
How does a state of armed conflict reach a conclusion? The answer may be deduced from the following statement in FM 27-10:
|The law of land warfare
generally ceases to be applicable upon:
a. The termination of a war by agreement, normally in the form of a treaty of peace; or
b. The termination of a war by unilateral declaration of one of the parties, provided the other party does not continue hostilities or otherwise decline to recognize the act of its enemy; or
c. The complete subjugation of an enemy state and its Allies, if prior to a or b; or
d. The termination of a declared war or armed conflict by simple cessation of hostilities.
FM 27-10 at ¶10.
Note that the factors above discussed require
"complete subjugation of a State and its Allies." That
limitation reflects the holding of the IMT rejecting the defense raised at
Nuremberg that Germany was no longer bound by rules of land warfare because it
had completely subjugated the countries where the conduct at issue had occurred.
The Tribunal held that:
|The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners...|
IMT Vol XXII p. 497.
between belligerents involves both temporary measures for cessation of
hostilities and negotiations for long term conflict resolution.
In accordance with the substance of my letter to you of the 8th instant, I
propose to receive the surrender of the Army of Northern Virginia on the
following terms, to wit:
Rolls of all the officers and men to be made in duplicate, one copy to be given to an officer designated by me, the other to be retained by such officer or officers as you may designate; the officers to give their individual paroles not to take up arms against the Government of the United States until properly exchanged and each company or regimental commander to sign a like paper for the men of his command.
The arms, artillery and public property are to be parked and stacked, and turned over to the officer appointed by me to receive them. This will not embrace the side-arms of the officers, nor their private horses or baggage. This done, officers and men will be allowed to return to their homes, not to be disturbed by United States authority so long as they observe their paroles and the laws in force where they may reside.
Terms of Armistice tendered by Ulysses S. Grant to Robert E. Lee, Appomattox, VA. 1865.
An armistice is by definition a temporary
agreement, but it may in reality last for a very substantial period pending the
signature of a treaty of peace.
Art. 36. An armistice suspends military operations by mutual agreement between the belligerent parties. If its duration is not defined, the belligerent parties may resume operations at any time, provided always that the enemy is warned within the time agreed upon, in accordance with the terms of the armistice.
Art. 37. An armistice may be general or local. The first suspends the military operations of the belligerent States everywhere; the second only between certain fractions of the belligerent armies and within a fixed radius.
Art. 40. Any serious violation of the armistice by one of the parties gives the other party the right of denouncing it, and even, in cases of urgency, of recommencing hostilities immediately.
Hague Regulations of 1907.
The chief peacemaking body is now, of course, the United Nations. In addition, International peacemaking entities include both quasi-NGOs such as the United States Institute Of Peace and strictly private entities such as the Soros Foundation. An example of a modern armistice document may be found in the Cease Fire Resolution (Resolution 687) which ended the First Gulf War in 1991. It provided, inter alia, that the Security Council:
|8. Decides that Iraq
shall unconditionally accept the destruction, removal, or rendering
harmless, under international supervision, of:
9. Decides, for the implementation of paragraph 8 above, the following:
Chapter 7 of the U.N. Charter entitled "Pacific Settlement Of Disputes" provides in part that parties to an international dispute likely to endanger international peace "shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice." Article 33,(emphasis added). If the Security Council decides (Article 37) that the dispute does endanger international peace and security, it may either recommend a settlement, or recommend appropriate procedures for settling the dispute.
|Questions To Consider About Peace-Making|
|10.2.1 Suppose there is a three way armed conflict. Israel could, for example, be in a state of war with Iraq and a de facto armed conflict with Iran, at the same time those two states are engaged in direct warfare. Is there precedent for settling such a conflict? What are the potential complications? Consider the switch of Italy in 1943 from an ally of Germany and Japan to a "co-belligerent" of the United States and Great Britain.|
|10.2.2 Is there a down-side to peace making? Might participation in the process place a nation in the position of a guarantor of the peace? Could a breach by one side engage a guarantor in the resulting conflict? Consider the status of the United Nations in Korea in 1950.|
|10.2.3 In 1991 the United Nations Security Council passed Resolution 687 which set terms ending the First Gulf War. Consider the terms of Hague Regulation Article 40. Did Iraq's failure to destroy missiles under Section 8b constitute justification for denunciation of the cease fire. If so, what legal effects would be implicated? Would another Security Council international peace and security resolution be required to authorize resumption of hostilities?|
Under the terms of FM 27-10, the law of land warfare generally ceases to
be applicable "upon the complete subjugation of an enemy state and its
Allies." The IMT Nuremburg held that the subjugation "doctrine was never
considered to be applicable so long as there was an army in the field
attempting to restore the occupied countries to their true owners."
Have the Taliban been completely subjugated? If not, what is their status?
This section deals with international delicts and international tribunals. For some discussion of national war crimes prosecutions see Chapter Four, supra. In addition see Evan Wallach, Afghanistan, Yamashita and Uchiyama, The Army Lawyer, Nov. 2003. A fascinating discussion of the historical antecedents of American military tribunals may be found in Louis Fisher, Nazi Saboteurs On Trial, University Press of Kansas (Lawrence, KS, 2003). See also, Evan Wallach, The Procedural And Evidentiary Rules Of The Post-World War II War Crimes Trials: Did They Provide An Outline For International Criminal Procedure?, 37 Columbia Journal of Transnational Law 851 (1999).
Since the end of World War Two and the
Nuremberg Trials customary law has rejected the
argument that the laws of war bind nations not men:
|It was submitted that international law is concerned with the actions of sovereign States and provides no punishment for individuals; and further that where the act in question is an act of state, those who carry it out are not personally responsible ...In the opinion of the Tribunal both these submissions must be rejected...Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.|
Judgment of International Military Tribunal at p. 46.
In 1993, the
United Nations Security Council passed Resolution
827 for establishment of an International War crimes Tribunal for Former
Yugoslavia. In that Resolution, the Security Council said it was determined to
put an end to "mass killings, massive, organized and systematic detention
and rape of women, and the continuance of the practice of "ethnic
cleansing", including for the acquisition and the holding of territory,"
and that it was "[c]onvinced that in the particular circumstances of the
former Yugoslavia the establishment as an ad hoc measure by the Council of an
international tribunal and the prosecution of persons responsible for serious
violations of international humanitarian law would enable this aim to be
achieved and would contribute to the restoration and maintenance of
peace..." Accordingly, it established the Tribunal and ordered that:
|...all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute...|
The Council's action was followed by other steps dedicated to establishment of both ad hoc (Rwanda) and permanent tribunals. What, in essence are the crimes heard before such tribunals? The United States Marine Corps has provided an excellent definition:
The discovery, investigation, prosecution and punishment of individuals responsible for violations of the laws of war has become increasingly important on a global basis. War crimes may, of course, be investigated and punished by the nation whose personnel commit the offense (see, United States v. Calley), but the international community has, in the past decade, shown an expanded willingness to create international tribunals to investigate and punish such crimes. Their existence, procedures, and substantive law constitute one of most complex and potentially effective areas in the law of war.
The term "war crime" is the technical expression for a violation of the law of war by any person...military or civilian. Every violation of the law of war is a war crime....This definition is much too broad to be helpful to the tactical commander. There are many petty and/or technical requirements in the law of war (such as on which arm the Red Cross emblem may be worn...), violations of which would not be criminal by anyone's standards. A more realistic definition of war crime would be: Any violation of the law of war which injures the opponent, a neutral or a noncombatant, or which gains a military advantage for the person or force committing the violation....
U.S. Marine Corps Law Of War Desk Book at pp.91-92.
Substantive and procedural questions about war crimes tribunals were the area of most intellectual ferment in the law of war in the last decade of the Twentieth Century. The congruence of the end of the Cold War with its new willingness of international actors to call at least some miscreants to account, with the parallel tragedies in former Yugoslavia and Rwanda, provided a forum for experimentation, discussion and development of international legal standards. In the short term the result has been the continuing evolution of the International Criminal Tribunal for Former Yugoslavia, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone. The process of longer term planning was largely centered on the development of an International Criminal Court under U.N. auspices. With the entry into force of the treaty creating the I.C.C., the debate was limited to whether additional non-member states, such as the United States, should accede.
The arguments for and against membership in the I.C.C. are largely political and in many instances those regarding membership in the U.N
|Subordination of national sovereignty versus international peace and security|
|Use of the Court for improper political ends|
|Potential incompetence and corruption of international institutions|
|Deprivation of rights guaranteed under national constitutions|
For further documentary information regarding the I.C.C, see I.C.C. Resources as well as the Links pages of this web site.
The issues raised are both substantive and procedural. The chief substantive questions are almost self-evident.
|What is the court's subject matter jurisdiction?|
|Over what sort of persons should jurisdiction lie?|
|How does national law and its application by national tribunals affect the jurisdiction of the court?|
Many of the answers may be found from examination of the Rome Statute of the International Criminal Court, and the commentaries thereon. Article 5 of the statute provides that the Court's jurisdiction is "limited to the most serious crimes of concern to the international community..." including crimes against humanity; war crimes; and criminal aggression.
Jurisdiction also depends on the source of reference of the case. Article 13 of the statute provides that the Court may exercise its jurisdiction under article 5 if:
A situation in which one or more of such crimes appears to have been
committed is referred to the Prosecutor by a State Party in accordance
with article 14;
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
Some issues remain open questions. See, Sarah B. Sewell and Carl Kaysen, Ed.s, The United States and The International Criminal Court, Rowman & Littlefield (Lanham, MD, 2000). Procedural matters have been largely resolved, at least to the satisfaction of most members of the international community. It is to those procedural issues we will first turn.
German General Anton Dostler immediately prior to execution by firing squad for war crimes, Aversa, Italy. December 1, 1945.
United States National Archives, http://www.archives.gov/research/ww2/photos.
|A particularly fruitful field for research and publication is that of legal procedure. Almost all the war crimes trials have presented procedural questions to which different answers might have been given depending upon what system of law the court chose to follow. The evidentiary weight to be given hearsay evidence of affidavits is a common example of this type of problem. Furthermore, the unsettled state of the world and the unusual nature of the trials precipitated many novel procedural matters which the tribunals had to determine without much in the way of past practice to guide them. Based upon the record of the Nuremberg trials alone a most useful study could be made, but a full treatment would require examination of the records of many other trials...From such a study, the outlines of international legal procedure should emerge.|
Telford Taylor, An Outline of the Research and Publication Possibilities of the War Crimes Trials, 9 LA. L. Rev. 496, 501 (1948-49).
A number of sets of procedural rules actually used in war crimes trials are now available as the basis for a model code. For rules currently in use, an interested person may consult the ICTY Rules Of Procedure (18 July, 2000) and the ICTR Rules Of Procedure (26 June, 2000). Historical background is also available from the much less extensive rules of the post-WWII trials including the Nuremberg Trial Of Major War Criminals Rules Of Procedure (29 October, 1945) and the Far East (Tokyo) Tribunal Rules Of Procedure (25 April, 1946). Finally, the International Criminal Court Rules Of Procedure (30 June 2000) provide an up-to-date example of modern, although not yet tested, thought about fair procedural rules for use in international criminal trials.
|The responsibility of States is not limited to restitution and to damages of a penal character. The State, and those acting on its behalf, bear criminal responsibility for such violations of international law as by reason of their gravity, their ruthlessness, and their contempt of human life place them within the category of criminal acts as generally understood in the law of civilized countries.|
Hersch Lauterpacht, Oppenheim's International Law (7th Ed) § 156b, p.321.
The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.
Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.
In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949.
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War.
On April 19, 2004, the Appellate Chamber of the ICTY substantially broadened the definition of Genocide in the Krstic Case. Krstic argued that the Trial Chamber misconstrued the legal definition of genocide. With respect to the legal challenge, the Defence’s argument was two-fold. First, Krstic contends that the Trial Chamber’s definition of the part of the national group he was found to have intended to destroy was unacceptably narrow. Second, the Defence argued that the Trial Chamber erroneously enlarged the term “destroy” in the prohibition of genocide to include the geographical displacement of a community. The Appellate Chamber's response is enlightening:
|The intent requirement of
genocide under Article 4 of the Statute is therefore satisfied where
evidence shows that the alleged perpetrator intended to destroy at least a
substantial part of the protected group. The determination of when the
targeted part is substantial enough to meet this requirement may involve a
number of considerations. The numeric size of the targeted part of the
group is the necessary and important starting point, though not in all
cases the ending point of the inquiry. The number of individuals targeted
should be evaluated not only in absolute terms, but also in relation to
the overall size of the entire group. In addition to the numeric size of
the targeted portion, its prominence within the group can be a useful
consideration. If a specific part of the group is emblematic of the
overall group, or is essential to its survival, that may support a finding
that the part qualifies as substantial within the meaning of Article 4.
The historical examples of genocide also suggest that the area of the perpetrators’ activity and control, as well as the possible extent of their reach, should be considered. Nazi Germany may have intended only to eliminate Jews within Europe alone; that ambition probably did not extend, even at the height of its power, to an undertaking of that enterprise on a global scale. Similarly, the perpetrators of genocide in Rwanda did not seriously contemplate the elimination of the Tutsi population beyond the country’s borders. The intent to destroy formed by a perpetrator of genocide will always be limited by the opportunity presented to him. While this factor alone will not indicate whether the targeted group is substantial, it can - in combination with other factors - inform the analysis.
These considerations, of course, are neither exhaustive nor dispositive. They are only useful guidelines. The applicability of these factors, as well as their relative weight, will vary depending on the circumstances of a particular case.
Prosecutor v. Radislav Krstic, Judgement at Paragraphs 11-13.
|Questions To Consider About War Crimes Tribunals|
|10.3.1 Review the definition of genocide in the 1948 Convention. Article II defines genocide as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such [including] (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group." Consider the United States treatment of American Indians in the 19th and 20th century, Australian treatment of Aboriginal peoples, Soviet and P.R.C. forced mass transfers of populations and government caused mass starvation of regions. Assume the Convention was in effect at the time of these actions, and list arguments for and against treatment of these actions as genocide.|
|10.3.2 Was the North Vietnamese invasion of South Vietnam in 1975 in violation of the Paris Peace Accord, and if so, was it a crime against peace? List the arguments for and against that position. If it was a violation, who, if anyone bears continuing legal responsibility?|
|10.3.3 Compare the evidentiary and procedural rules and organization of the international criminal tribunals for Rwanda and Former Yugoslavia. Given the nature of those rules, why have the two tribunals functioned differently? (Hint: look for practical answers involving resources and cooperation of local authorities).|
|10.3.4 Review the Calley decision. If Lieutenant Calley was following Captain Medina’s orders did he have a defense? What precedents apply? Did Captain Medina commit any war crimes? Calley argued that "the history of operations around Pinkville discloses villager sympathy and support for the Viet Cong, so extensive and enduring as to constitute all the villagers as belligerents themselves..." Given the facts as presented should his argument prevail? Was Calley's sentence consistent with the facts discussed above? How does it compare with sentences of defendants in the subsequent Nuremberg trials?|
10.3.5. Any definition of war crimes includes those acts against protected persons defined as "grave breaches" in the 1949 Geneva Conventions, such as willful killing, torture or inhumane treatment including biological experiments in Prisoner of War Convention Article 130 or "wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly." in Article 147 of the Civilian Convention. Are the following grave breaches:
|10.3.6 Is the "taking of hostages" clause in the Grave Breaches section (Article 147) of the Geneva Civilians Convention modified by the "justified by military necessity " clause? If so, does the Convention imply that in some circumstances the taking of hostages is legal under this Convention? Is your conclusion affected by Article 75, Section 2(c) of Protocol I to the Geneva Conventions (1977)? Has Protocol I gained binding effect?|