War Crimes

Early Conceptual Development

The concept of war crimes has a long history and spans many cultures. The Greeks and Romans forged rules for the treatment of the wounded and of prisoners. The Chinese author Sun Tzu, writing in the fourth century BCE in The Art of War, surveyed the custom of sparing the wounded and elderly and developed a concept of command responsibility for violations. In the Hindu code of Manu (circa 200 BCE), the notion of war crimes per se appeared more fully. Academics have traced systems of rules for regulating the practice of war through several centuries, as in the various samurai codes in Tokugawa Japan and the practice of chivalry in medieval Europe. St. Augustine, among other early Christian theologians, discussed the idea of just war in his treatise City of God.

The first prosecution for initiating an unjust war reportedly occurred when Conradin von Hohenstaufen was convicted and executed in Naples in 1268. Hohenstaufen was tried by his own nation's court for violations of the law of his country. The first true trial of an international nature for war crimes is generally considered to be that of Peter von Hagenbach, who was tried in Breisach, Germany, in 1474. Hagenbach, the appointee of Duke Charles of Burgundy, was tried for atrocities committed in an attempt to subdue Breisach by force. Presiding were 27 judges of the Holy Roman Empire, each representing a member state or unit of the Empire. Hagenbach was found guilty and sentenced to death for wartime atrocities of murder, rape, perjury, and other crimes committed by his troops against civilians.

Gradually, observing certain restraints during warfare became such a widespread practice that these restraints became usages or customs of warfare. By 1625, such rules had become sufficiently widely accepted that Hugo Grotius, considered the founder of modern international law, was able to collect various historical writings on these customs and usages in a treatise called The Law of War and Peace. Although he was concerned with the barbarism of war, Grotius's focus was on the use of just war as an instrument of [Page 1700]law; thus, he challenged the concept of war as an extralegal affair.

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