Nazi defendants in the dock at the Nuremburg Trials, 1946. Left to right, front row: Hermann Göring, Rudolf Hess, Joachim von Ribbentrop, and Wilhelm Keitel; second row: Karl Dönitz, Erich Raeder, Baldur von Schirach, and Fritz Sauckel.
30 November 2023
The ideas of a war crime, that is a violation of the generally accepted rules of warfare, and that of a war criminal, one who violates those rules, are modern concepts, only starting to coalesce at the end of the nineteenth century. Within the framework of international law, war crimes include, but are not limited to, the killing of prisoners of war, deliberate targeting of civilians, bombing civilian targets, the taking of hostages, and the use of chemical or biological weapons. In general, non-legal use, the terms can be more expansive, taking in horrific acts committed during wartime that may not fall within the legal definitions set forth in various treaties.
The term war crime first appears in a somewhat different definition, that of a violation of the a nation’s military rules and laws (what in the US military today constitute the Uniform Code of Military Justice). The term first appears in the context of an attempt by some in the US Congress to reduce the number of such offenses that were punishable by death. From the St. Louis Republic of 29 October 1892:
Suggestion is made by the report that the articles of war authorizing capital punishment might, to some extent, be modified even as to time of war, but that the death penalty should be reserved for the soldier in the time of war who deserts to or in the immediate presence of an enemy. Desertion, however, of a less degree should not be punishable with death as in a time of war. The entire abolition of the death penalty for war crimes, as proposed in a bill now pending in Congress, the report thinks impracticable.
We see the beginnings of the present-day definition in the case of Dr. Ricardo Ruiz, whose arrest and death were among the events that led to the Spanish-American War of 1898. Ruiz was a Cuban-born, naturalized US citizen and dentist who was arrested by Spanish authorities in Cuba on 4 February 1897 and charged with the derailment and robbery of a passenger train. He was held incommunicado and died in jail some two weeks later. There was evidence that had been tortured. From the Boston Herald of 8 June 1897:
Dr. Ruiz’s case is not even as strong as some of the other cases in [sic] behalf of American citizens in Cuba. He was charged with a crime not regarded as a war crime, but, nevertheless, it furnishes ample provocation for a vigorous demand for redress on behalf of widow, and also some apology for the violation of the treaty.
The phrase war crime appears in a newspaper sub-headline in the Wisconsin Weekly Advocate of 10 April 1902. Here the relevant case is that of crimes committed by British officers during the Boer War. The events of this case were dramatized in the 1980 film Breaker Morant. From the Wisconsin Weekly Advocate:
Alleges War Crime.
Liverpool, April 8.—A former trooper of the Bushveldt Carbineers, who has returned here, is quoted as saying that the convicted Australian officers belonging to that corps, since disbanded, murdered from thirty-five to forty persons. As an instance of their cold-bloodedness, the trooper relates how three Dutch children, 2 and 12 years of age, respectively, and their little sister, arrived at the Carabineers' camp to surrender, in order to be given food. The girl and one of the boys were wounded. The uninjured boy took his little brother on his back and was carrying him off when a second shot killed both boys. The girl died shortly afterward.
War crime and war criminal were first given formal legal definition in L.F.L. Oppenheim’s 1906 International Law: A Treatise. Oppenheim, considered to be “the father of modern international law,” was a German-born jurist residing in England:
§ 252. However, in spite of the uniform qualification of these acts as war crimes, four different kinds of war crimes must be distinguished on account of the essentially different character of the acts. Violations of recognised rules regarding warfare committed by members of the armed forces belong to the first kind; all hostilities in arms committed by individuals who are not members of the enemy armed forces constitute a second kind; espionage and war treason belong to the third; and all marauding acts belong to the fourth kind.
§ 253. Violations of rules regarding warfare are war crimes only when committed without an order of the belligerent Government concerned. If members of the armed forces commit violations by order of their Government, they are not war criminals and cannot be punished by the enemy; the latter can, however, resort to reprisals. In case members of forces commit violations ordered by their commanders, the members cannot be punished, for the commanders are alone responsible, and the latter may, therefore, be punished as war criminals on their capture by the enemy.
Since World War II, Oppenheim’s idea that a soldier is not a war criminal if they were simply following orders has been rejected. The defense that they were “just following orders” is not a valid one. And this rejection even predates Oppenheim’s treatise in that the Morant and the other officers of the Bushveldt Carbineers attempted to use it as a defense at their court martial and were unsuccessful.
Sources:
“General Acquitted” (8 April 1902). Wisconsin Weekly Advocate (Milwaukee), 10 April 1902, 2/3. Readex: America’s Historical Newspapers.
Oppenheim, Lassa Francis Lawrence. International Law: A Treatise, vol. 2 of 2. London: Longmans Green, 1906, 2:264–65. HathiTrust Digital Archive.
Oxford English Dictionary, second edition, 1989, s.v. war crime, n., war criminal, n.
“Spain Must Settle It” (8 June 1897). Boston Herald (Massachusetts), 9 June 1897, 1/3. Readex: America’s Historical Newspapers.
“Suggestions as to Military Punishment.” St. Louis Republic (Missouri), 29 October 1892, 7/1. Readex: America’s Historical Newspapers.
Photo credit: Office of the U.S. Chief of Counsel for the Prosecution of Axis Criminality, 1946. US National Archives, Record Group 238: National Archives Collection of World War II War Crimes Records, Series: Photographs relating to Major Nuremberg Trials, NAID: 540128. Public domain image.