War crimes
The records of the war crimes trials after World
War II provide one of the most comprehensive formulations of the concept
of war crimes. During that war the Allies agreed to try Axis war
criminals. In Aug., 1945, Great Britain, France, the USSR, and the
United States established a tribunal at Nuremberg to try military and
civilian Axis leaders whose alleged crimes were directed at more than
one national group. The trial opened in Nov., 1945. Voluminous evidence
was presented to prove the plotting of aggressive warfare, the
extermination of civilian populations (especially the Jews), the
widespread use of slave labor, the looting of occupied countries, and
the maltreatment and murder of prisoners of war. Among those sentenced
to death (1946) were Hermann
Goering , Joachim
von
Ribbentrop , and
Julius
Streicher .
Hjalmar
Schacht and Franz
von
Papen were
acquitted. The court did not convict Nazi organizations or the German
general staff. In 1961, Israel captured, tried, and later executed Adolf
Eichmann .
A trial of 28 alleged Japanese war criminals was conducted (1946-47)
by an 11-nation tribunal in Tokyo. Evidence similar to that presented
against the Nazis brought death sentences to Hideki
Tojo and others.
The U.S. Supreme Court refused an appeal that was based on the ground
that the international court was unlawful. There were many trials in
national civil and military courts, including those of the Japanese
generals Tomoyuki
Yamashita and
Masaharu Homma.
Critics have questioned the legal basis of some of the charges at
the post-World War II trials. Individuals were found guilty of acts
considered legal, or even required, by their nation at the time; such
findings represent a violation of the concept of
sovereignty . The
plotting or carrying out of aggressive war had not been previously and
explicitly called criminal, and the judges tended to define it very
narrowly. A defendant was generally found guilty only if he had been
involved in developing the policy, but not if he had simply carried it
out.
Critics have also termed the trials an act of vengeance by the
victors and questioned their practical use as a precedent. Personal
liability for national action is very difficult to prove conclusively,
and a nation will be reluctant to try its own leaders. Therefore,
effective prosecution may be possible only if a nation is defeated (and
then perhaps only if the documents are captured, as they were after
World War II).
Both critics and supporters of the U.S. role in the Vietnam War have
justified their positions on the basis of the post-World War II trials.
Several Americans were tried for war crimes in this war, and Lt. William
Calley was found guilty (see
My Lai incident )
of particularly disturbing acts against civilians that for many became
emblematic of the horrors of the Vietnam conflict. In the 1990s, in
reaction to war atrocities committed by various parties during the
breakup of
Yugoslavia , the
United Nations established a tribunal in The Hague, the Netherlands, and
attempted to gather evidence for prosecutions; Serbs, Croats, and
Muslims have been charged, including top civilian and military Bosnian
Serb and Bosnian Croat leaders. The highest ranking official to be tried
is former Yugoslavian president Slobodan
Milošević , whose
trial began in 2002. In 2000 the Hague tribunal officially established
rape, which was rampant during the Yugoslav civil strife, as a war
crime. A UN tribunal was also set up in Tanzania to try those
responsible for Hutu massacres of Tutsis in Rwanda in 1994 and in Sierra
Leone to try persons accused of atrocities in that country's civil war
(1991-2001).
Despite increasing international recognition of the need to
prosecute war crimes, such offenses are still often unpunished. Although
there have been many calls for prosecution of former
Khmer Rouge
leaders for war crimes, they have not tried by Cambodia or
internationally (due mainly to the failure of the Cambodian government
to reach an agreement on trials with the United Nations). In Indonesia
the national courts have tried a number of Indonesian officials and
officers for war crimes in East Timor during 1999, but the proceedings
have mostly ended in whitewash acquittals.
In 1998 the UN General Assembly voted in favor of a treaty
authorizing a permanent international court for war crimes. The United
States, China, and five other nations opposed the treaty, and 21 nations
abstained. The treaty has been signed by more than 130 nations
(including the United States), and formally came into effect in July,
2002; the judges of the court were formally sworn in in 2003. Called the
International Criminal Court and located at The Hague, it may prosecute
war crimes, genocide, crimes of aggression, and crimes against humanity.
Under the G. W. Bush administration, the United States opposed
implementation of the treaty, out of fear that American officials or
military personnel might be arrested abroad on baseless charges. In May,
2002, the United States repudiated its signing of the treaty and
indicated that it would refuse to cooperate with the court; it
subsequently insisted that U.S. forces used as UN peacekeepers be
exempted prosecution by the court.
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