War Atrocities

Sources of Law

The Ancient Greeks seem to have been the first civilization to have tribunals for sanctioning misconduct in war. The first modern trial for war crimes is generally believed to be that of Peter van Hagenbach, a knight acting for the Duke of Burgundy in 1474 who led a brutal siege of the town of Breisach, Germany. Although he claimed he was only following orders, judges of the Holy Roman Empire stripped him of his knighthood and sentenced him to death for violating the “laws of God and man.”

Current international law on war atrocities is composed of two types of law, customary and codified, and two branches of law, international humanitarian law and international human rights law.

Customary law is composed of norms established through the general and consistent practice of nations and the belief that such norms are legally binding. It is in essence the set of unwritten but mutually understood behavioral rules that are followed by most nations at most times. Its chief advantage is that all countries are bound by its rules, regardless of their formal ratification or acceptance of international treaties. Its chief disadvantage is that by its very nature, its principles are not clearly defined. For this reason, some nations, especially the United States, often oppose the use of [Page 516]customary law because it is not positive law. Its use as the legal basis for determining war crimes is well established, however. The war crimes tribunals at Nuremberg and Tokyo following World War II as well as the recently established ad hoc tribunals for Rwanda and the former Yugoslavia are in large part dependent on customary law for their legal standing.

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