War Crimes

THE MAJORITY OF the literature on white-collar and corporate crime generally focuses on financial and commercial crimes. Yet, the historical conditions in the last decades of the 20th century and the beginning of the 21st, such as the bloody, ethnic wars in the Balkans, Africa, and the Middle East as well as state-organized terrorism, have prompted a growing interest in the area of state and governmental crimes.

Although numberless treaties, protocols and conventions regulate the laws of war, images of concentration camps, ethnic cleansing, torture and execution of prisoners and civilians, rape, bombing of cities and of their monumental patrimony are still a very vivid part of our collective memory. All these actions can be defined as war crimes, as violations of the laws of war, or International Humanitarian Law (IHL). While our familiarity with war crimes has been dramatically enhanced and disseminated by media coverage of more recent wars, legal limitations on the behaviors of soldiers and armies were first contemplated by the Greeks and by the Hindu code of Manu (200 B.C.E.).

The early theories of war were elaborated by philosophers as a reaction to the religious wars that devastated Europe in the 16th and 17th centuries. Equally, while tribunals and reconciliation committees for war and military crimes have been widely invoked after the Second World War, the first trial for war crimes dates back to the 15th century when Peter von Hagenbach was sentenced to death for wartime atrocities.

As a result of the atrocities suffered by prisoners and expeditionary forces during 19th century conflicts such as the Crimean War and other struggles for national independence; calls for drafts that would codify the rules of military engagement began to multiply. During the American Civil War, President Abraham Lincoln appointed to this task the New York professor, Francis Lieber, whose Lieber Code had a deep impact on all subsequent conventions and protocols. These were mainly held and signed in two European cities: The Hague, Holland (in 1899, 1907 and 1954) and Geneva, Switzerland (in 1925, 1929, 1949, and 1977). These conferences, while remaining silent on the legitimacy of war itself, addressed problems raised by the conflicts that had taken place just before their assemblies.

Atrocities included the use of poisonous gases and biological weapons, the fate of the wounded and sick on land and at sea and of prisoners of war, the destiny of civilian noncombatants, and the protection of cultural monuments. In addition to the rules codified during these events, the Nuremberg tribunals of Nazi leaders (1945–49) theorized the concept of crime against humanity, which was reinforced by the 1948 United Nations Convention on[Page 852] the Prevention and Punishment of the Crime of Genocide.

The 1945 Charter of the international military tribunal at Nuremberg classified war crimes as “violations of the laws or customs of war,” and included under this rubric murder, ill-treatment, or deportation of civilians in occupied territory; murder or ill-treatment of prisoners of war; killing of hostages; looting of public or private property; willful destruction of municipalities and gratuitous devastation.

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