War crimes and the part of international law
It cannot be denied that on several practical grounds the trial ofwar criminals under national law has certain advantages. Provided the resemblance between the war crime and the ordinary crime under municipal law was close, courts were able to apply a law which was not only familiar but also possessed a high degree of certainty by contrast with the undeveloped state of the international law relating to war crimes. War criminals were, furthermore, tried under the same system of law as were so-called collaborationists, from whom they often differed only with respect to nationality and allegiance. It is true as well that municipal law also provided a lex to satisfy the demand of nullum crimen sine lege,35 but the novel interpretations which were read into existing military and criminal codes by legislative or judicial action after the offence had taken place makes this claimed advantage more apparent than and 4 of the Prisoner-of-War Convention (Geneva, 1929), the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and of Article II of Control Council Law No. 10’ (United States v. Brandt et Al. (1947), Trials of War Criminals, vol. i (1949), p. 15).
real. In contradistinction, existing international law antedated both the criminal acts committed by enemy personnel and the municipal legislation which provided sanctions against them. Finally, it must be observed that, even in Anglo-American jurisprudence, municipal law relating to discipline within the armed forces will offer a sound basis for the punishment of war crimes committed by members of a belligerent’s own forces.
However, if attention is paid to all the ramifications of trials under national law, the consequences of its employment are not conducive to optimism concerning the future course of the law of war. In the first place, the jurisdiction of war crimes tribunals is thereby normally confined to offences committed on the soil of the prosecuting state or against its nationals and residents. Special occupation courts therefore become necessary in order to deal with those war crimes which are within the jurisdiction of the prosecuting state only qua military occupant. In the absence of these bases of jurisdiction, the state employing municipal law is powerless, by reason of self-imposed limitations, to deal with other offences committed even by the same accused, despite the fact that war criminals have often been guilty of a course of conduct which does violence to the nationals or interests of a number ofstates. Even the punishment ofoffences committed by allied forces who might be unwilling to enforce conformity with the law of war, or incapable of doing so, would be impossible in many circumstances. Secondly, on the ground of procedure, the theory of deprivation of immunity under international law followed by an establishment of the offence under municipal law creates a double problem of proof, leading to procedural complexity and perhaps even to acquittal of the guilty. Thirdly, the trial of war criminals under local law leads to a diversity of substantive law such that an act may be punished as a war crime in one country but not in another. Besides these difficulties of legal administration, there are more fundamental objections to the use of municipal law. Of these, the fact that war crimes are of a basically different nature from crimes under national law is probably the most important, as has been indicated by the course of Netherlands jurisprudence in war crimes cases. The war crimes of deportation and forced labour, for example, fit but awkwardly into the French municipal law concept of sequestration. Other violations of the international law of war, such as denationalization or interference with the religious rights of prisoners of war, probably have no counterparts in municipal law. Furthermore, during the Second World War war crimes were inspired by the state, were carried out on a widespread and systematic basis, and were actually seldom the private acts of individuals. Municipal law has hitherto not been called upon to deal with mass deportations and killings or with cruelty designed and executed by another state, nor can it offer much assistance to the court which is, for example, considering whether the accused committed a crime not in compelling prisoners to perform labour but in compelling them to perform a type of labour which the Geneva Prisoners of War Convention of 1929 forbids. Only to the extent that war crimes are tried under national law by transformation of the norms of international law into precepts of municipal law corresponding closely thereto are the difficulties inhering in the continental view rendered less troublesome. They still persist, however, in such forms as limitation of jurisdiction.
If, in those states in which war crimes are tried under municipal law, the function of international law is to furnish a justification for acts of warfare which are thereby recognized to be lawful, the law of war loses its reasonableness. The international law of war is ‘prohibitive law’ and its purpose is to place curbs upon the otherwise unrestrained violence ofwar. Belligerent acts in war are facts, not legal rights, and to set the law to justifying them, instead ofkeeping them within limits which comport with the dictates of humanity, leads to a law which places its emphasis on the rightness of war to the detriment of what is wrong in war. Any theory which relies on the law of nations as a defence for belligerent acts thus fails to accord with the true raison d’etre of the law of war and with the many expressions of the intentions of those who have contributed to its development in recent years.
The argument concerning the relative virtues ofmunicipal and international law in dealing with war crimes has been protracted and complex, and it is not proposed to attempt its resolution here. If the Anglo-American and what appears to be the view of the two International Military Tribunals is accepted, the role of international law in the suppression ofwar crimes is obvious. But even ifwar crimes are to be tried under municipal law, their international significance is not altogether lost. Although a state may try war crimes committed against its interests or its nationals or on its territory or by its nationals under its own municipal law, whether or not to punish war crimes is not left to the unfettered discretion of the state. Both the Geneva Wounded and Sick Convention of 1929 and the Geneva Conventions of 1949 contain positive undertakings to enact penal legislation necessary to punish violations of those treaties, and it would appear that a like requirement is imposed by the customary law of war. Military commanders, it is clear, also have an obligation to prevent the commission of war crimes by their subordinates, just as the state may be said to have with respect to its armed forces.
Further evidence of the interest of the international community in the suppression of war crimes of the atrocity type is furnished by the numerous instances in which the prosecution of war criminals has been the subject of international consideration or agreement. Provision was made in the Treaty of Versailles and other treaties of peace following both World Wars for the punishment or surrender of persons who had committed ‘acts in violation of the laws and customs of war’ or ‘war crimes’. While the Second World War was yet in progress, the punishment of war crimes was given active consideration by the United Nations. The landmarks of this war-time planning—the Declaration of St. James’s, the Moscow Declaration, and the London Agreement of 8 August 1945—recognize that war crimes possess not only an importance transcending national interests but also solemn undertakings, subscribed to even by those states which prosecuted war crimes under their own law, to participate and assist in the prosecution of such crimes. More recently, the International Law Commission of the United Nations has, at the behest of the General Assembly, formulated the Nuremberg Principles and prepared a Draft Code of Offences against the Peace and Security of Man- kind, among which are included violations of the laws or customs of war. By contrast, in the documents which have been mentioned and in the Charters of the International Military Tribunals, in Control Council Law No. 10, and in the multifarious directives and laws defining war crimes and providing for their punishment, there are no references to the prosecution by the tribunals so constituted of the so-called ‘war crimes’ of espionage, illegal hostilities in arms, war treason, guerrilla warfare, and the like. The record of more than three decades affords striking evidence of international participation in the prevention of war crimes of the atrocity type and indicates by its silence with respect to unprivileged belligerency that conduct of that nature is not, in a positive sense, of substantial international concern.
Without attempting to enumerate the many ways in which international law may be violated in such a manner as to engage the criminal responsibility of the individual, it is still possible, on the basis of the foregoing considerations, to articulate a distinction of a general nature between ‘war crimes’ in their proper sense and hostilities conducted by persons not of the armed forces—a subject discussed elsewhere in this volume. The tendency of international law and the particular emphasis of recent codification and change in the law of war has been on the protection of categories of persons, the greater number of whom are persons who cannot, as a matter of fact, engage in hostilities. These protected classes are the wounded and sick, prisoners of war, civilians in the territory of a party to the conflict, and the populations of occupied areas. In addition to these, members of the armed forces who are neither disabled nor in the hands of the enemy are, to a limited extent, also granted a protected status, for international law attempts to shelter them from unnecessary suffering and the unrestrained barbarities of war. Acts against any of these persons, by whomsoever committed, which are in violation of those fundamental principles of the law of war which forbid the infliction of unnecessary suffering and the creation of conditions which make impossible the restoration of peace therefore constitute war crimes. Hostile acts, however, which would if committed by members of the armed forces not be in violation of the law of war are not war crimes, since they do not prejudice the rights secured to protected categories of persons. It is the former category in which the international community has a substantial and continuing interest, made manifest by the number of occasions on which war crimes have been tried under international law or have been the subject of international agreements. This international concern in the protection of human rights and the restoration of peace can be vindicated only by the humanitarian intervention of international law and not merely by a denial of privileged status under the law of war. The resolution of those cases, notably those of ruses, which do not clearly fall into either the category of war crimes or that ofunprivileged belligerency must therefore depend upon a determination whether the act complained of is of so perfidious or inhumane a character as to require the active intervention of the law of nations.
Stated in positive form, the trial of war criminals under international law permits the direct application of a uniform law of a specialized nature to acts which are distinguished from common law crimes by reason of their occurrence in time of war. International law also surmounts the jurisdictional barrier, as municipal law cannot, by recognizing the universality of jurisdiction enjoyed by war crimes tribunals. Recent prosecutions of conventional war crimes and crimes against humanity have afforded many significant instances in which the victims of crimes have included few or no nationals of the prosecuting state. In the Zyklon B case,
for example, those killed by poison gas supplied by the accused included Belgian, Dutch, French, Czech, and Polish nationals, and it was not alleged that any British subjects were among the victims. The Nuremberg Subsequent Proceedings conducted by the United States pursuant to Control Council Law No. 10 involved, in the great majority of cases, offences committed against other than United States citizens, whether they had been the victims of plundering by German industrialists, members of occupied populations or prisoners of war for whose death or injury the German High Command was responsible, or persons deprived of the benefit of law by the defendants in the Justice Trial. Consequently, not only did the locus of the particular offence become immater- ial, but the United States also prosecuted persons who had been responsible for war crimes before that country had become involved in war. In addition to the many prosecutions of nationals of states at war with the United Nations, there are numerous instances of the trial of Allied nationals and even of nationals of neutral states who had taken part in such crimes. Although the prosecution of these persons was rationalized on the basis that the individuals concerned had subjected themselves to the jurisdiction of Allied war crimes tribunals by associating themselves with the enemy, they nevertheless point to a tendency to universality in the prosecution of such acts. It must be conceded that true universality has not been attained by those countries which apply international law to enemy war criminals, for the victims of conventional war crimes were, almost without exception, nationals of states allied with the prosecuting state or of the prosecuting state itself and the accused were either enemy nationals or persons who had voluntarily associated themselves with the enemy forces or administration. Crimes against humanity have, it should be observed, gone beyond these confines since even the enemy’s conduct with respect to its own population has been said to be cognizable by a tribunal to which has been presented a charge of a crime against humanity.
It may fairly be objected at this point that, although a distinction of a theoretical nature may exist between the problems of the qualifications of belligerents and of war crimes, as properly defined, no practical consequences flow from this dichotomy. Whether the individual is prosecuted for a war crime or is considered not to be entitled to prisoner of war status, the maximum penalty of death can, and often will, be imposed, and it matters little to the individual facing execution that there were two different possible bases for his impending death. This objection, however, overlooks a number of collateral legal problems for which the distinction is significant and disregards the importance of sound theory for the future development of the law of war.
In the first place, the state on whose behalf secret warfare is conducted and the states allied with it have neither a responsibility to restrain that form of warfare nor an obligation to punish its conduct. By contrast, there exists a duty for states not only to deal with war crimes committed by its enemies but also to punish war criminals amongst its own nationals as well, including the regular armed forces, civilians, and unprivileged belligerents fighting on its behalf.
It would also appear that the obligations of neutral states—if that expression can be said to retain any significance—differ with respect to the war criminal and the unprivileged belligerent. The duty of the neutral with respect to the latter would seem to be indicated by his combatant status and to entail the internment of the individual. To turn such an individual over to the enemy thereafter would appear to be as much a violation ofneutral obligations as would the rendition to the enemy of a member of the armed forces who had come into the territory of the neutral. However, there is no like obligation imposed by international law to prevent a neutral state from turning over to a belligerent for trial a person against whom a valid prima facie case of war criminality may be made out. It is in accordance with the principle ofuniversality in dealing with war crimes and with the international interest in the suppression of such offences, from which that jurisdiction is derived, that neutral states should not be in a position to thwart the prosecution of violators of international law without themselves becoming chargeable with an abuse of rights. To the extent that the theory which applies municipal law to war crimes emphasizes the national interest in their punishment, the extradition of war criminals becomes correspondingly more difficult to justify on grounds of policy and of logic.
What is referred to as universality of jurisdiction over war crimes falls considerably short of that goal as long as the jurisdiction is exercised by a belligerent only over persons associated with its enemies. There is reason to suppose, however, that one of the intermediate stages on the way to a true international penal jurisdiction may be the recognition that any state, including a neutral, has jurisdiction to try war crimes. By what state prosecution of a particular offence will actually be undertaken would then be determined, as it is now between allied or associated belligerents, by the convenience of the forum. If a neutral state should, by reason of the availability of the accused, witnesses, and evidence be the most convenient locus in which to try a war crime, there is no reason why that state should not perform that function. On the other hand, the penalizing of so-called ‘unprivileged belligerency’ on the part of spies, saboteurs, and the like, is an aspect of belligerency rather than an exercise of international penal jurisdiction, and there is accordingly every reason for denying jurisdiction to any state other than the offended belligerent or a state allied or associated with it.
Jurisdiction over war crimes continues until the termination of war by a treaty of peace, unless the treaty itself extends its duration. By contrast, both ‘unprivileged belligerency’, which partakes of the nature of a ruse, and the enemy’s jurisdiction to penalize it should be said to terminate either by the return of the individual to his own army or by reason of a definite cessation of hostile activity. In all probability, the cessation of hostilities between belligerents should have a like effect on unprivileged belligerency, since the death penalty which may be imposed in such cases is juridically akin to death in battle. Jurisdiction over war crimes is thus observed to be of greater duration than that over spies, francs- tireurs, and guerrilla fighters.
A distinction between war crimes and unprivileged belligerency also indicates the several paths which must be taken in dealing with the punishment of these two types of acts. In the case of the former, the objective must be the creation of a mature system of criminal jurisprudence on a universal basis, possibly culminating in the establishment of permanent international tribunals. In the case of unprivileged belligerency, international law, it is submitted, should merely concern itself with assuring a fair determination of the individual’s status by the belligerent in whose hands he is and, where appropriate, with the establishment of maximum punishments. The increasing meaninglessness of the uniform as determinative of rights may ultimately lead to a recognition of all belligerents, or of all armed belligerents, as ‘lawful’.
The law of war to which reference has been made in this Note is, of course, the conventional law of war governing the hostilities of enemy states. It may be anticipated that in the future the law of war may become a body of law relating to hostilities conducted between forces under the aegis of the international community and those of a state which has violated international law in resorting to war. While changes in the law of war may be expected to accompany this transformation, there is no basis for concluding that all the belligerents of the offending states will be regarded as criminal in an international sense or that the armed forces of an international police force will be subject to no legal restraints.