In my article “WAR CRIMES TRIALS”, I said that the 10,000 “war crimes trials” held since WWII have had little or no basis in law; that this is clear from the wording of the treaties which are said to have been violated; that the European and Asian resistance movements were illegal; and that the ‘collaborators’ shot, hanged, or imprisoned after WWII were acting in compliance with international law.
The truth of the above is apparent, not only from the provisions of the treaties said to have been violated, but from many, perhaps all, the recognized and prestigious texts on international law published between ratification of the various Hague Conventions and 1945.
The fact of the matter is, that the Allied victors of WWII stood international law on its head in 1945 by charging the defeated powers, not merely for “crimes” which never existed in pre-1945 international law at all – such as “willing membership in a conspiracy or common plan” to commit “crimes against humanity”, “crimes against peace”, “planning, preparations and waging of aggressive war”, etc., etc., but for actions which were PERFECTLY LEGAL UNDER INTERNATIONAL LAW AS IT EXISTED IN 1945.
Generally, the words “war crime” and “war criminal”, in traditional pre-1945 international law, referred to the actions of resistance movements and so-called “war treason”, i.e, any action taken by a resident or citizen of an occupied country harmful to the interests of the military occupant.
To a lesser extent, “war
crimes” also referred to illegal actions performed on the battlefield
by combat troops; various lists are given of between 10 and 20 offences, for
example, poisoning wells, abuse of a flag of truce, feigning death so as to
kill by treachery, etc. etc.
These latter actions have
very little relevance by comparison, and some of them even appear to have been
an Allied speciality (in particular, employing assassins, bombarding civilians
for purposes of terrorizing the population, the destruction of cultural monuments,
robbing prisoners of war of their valuables, abrogating the Geneva Convention
in Eisenhower’s “Death Camps”, etc.).
The following are a few
quotations on the subject only.
The index to WAR RIGHTS
ON LAND, by J.M. Spaight, LL.D., Macmillan and Co., Ltd, London, 1911, a classic
of international law, contains no mention of the world “Trial” “War
crimes trials” or “War crimes trials”. “Punishment of
offenders against the laws of war” is discussed on 462. “War treason”
is discussed on p. 333-5.
Page 333-5: “If the
inhabitants of an occupied territory do not owe allegiance to the occupying
belligerent, they do owe him the duty of quiescence and of abstention from every
action which might endanger his safety or success. They are subject to his martial
law regulations, and they may be judged guilty of ‘war treason’
under certain circumstances. ‘War treason’ (Kriegsverrath) [sic]
is distinguished from rebellion (which is the actual taking up of arms) and
is thus defined in the German Manual:
“The act of damaging
or imperilling the enemy’s power by deceit, or by the transmission of
messages to the national army on the subject of the position, movements, plans,
etc., of the occupant, irrespectively of whether the means by which the sender
has come into possession of the information be legitimate or illegitimate’
(e.g., by espionage). The French jurist, Professor Bonfils, points out that
it is quite immaterial what the motives of the war-traitor are – whether
patriotic and noble or base and mercenary – and how he has come by the
information he conveys; for these things do not affect the danger to the invading
army. So far as touches the latter, it is an act of perfidy when a person who
has been respected as a non-combatant abuses his position to render secret aid
to his national forces [footnote omitted].
“[…] In an occupied
country a certain law runs, and that law receives its sanction from the occupying
belligerent. He may keep the former Government’s laws in force, but still
they are, during occupation, the laws of the new ruler, who is alone able to
enforce them, and who might abrogate them if he chose. […] Today, treason
means a conspiracy against the established authority in a State. Now, the established
authority in an occupied territory is the de facto ruler, the occupant. If one
likes the phrase, he is the ‘war ruler’, and it is ‘war treason’
to conspire against the ‘war ruler’. No jurist would deny the occupant’s
right to deal summarily with an individual who, having been treated as a non-combatant,
abused his immunity by sniping the enemy’s foragers or stragglers; and
the damage done by one individual sniper would probably be infinitely less than
that done by sending messages to the national army. Either act is clearly one
which the occupant must, for his security’s sake, punish rigorously; not
because either is morally wrong, but because it is dangerous. But any way, if
one compares the two acts from the view-point of morality, less moral blame
would appear to attach to the man who takes rifle in hand than to him who pretends
to accept the occupant’s authority while all the time he is sending secret
messages to the other commander. Although no mention of war treason is made
in the British Official Manual, as it is in the French, German, and American
manuals, the offence is referred to in the Circular Memorandum issued by Lord
Kitchener on 2nd May 1900, relative to martial law in the Orange Free State…”
INTERNATIONAL LAW, A TREATISE,
by L. Oppenheim, M.A., LL.D., Vol. II, DISPUTES, WAR AND NEUTRALITY, Fifth Edition,
Edited by H. Lauterpacht, LL.D., Dr. Jur., Dr. Sc. Pol, published by Longmans,
Green, & Co., London, New York, Toronto, September 1935, discusses “War
crimes” on pp. 177, 178, 211, 219, 221, 337, and 460, stating “See
also WAR TREASON”. The index continues: “Conception of, 452, 456-461,
effects of peace on, 481, superior orders, defence of, 196, 454, violation of
capitulations and simple surrender, 432, 433. “Punishment” and “trial”
do not appear in the index. “War treason” is discussed on pp. 404,
456, and 457. “Distinguished from real treason” appears on p. 339,
“list of kinds of” appears on pp. 458 and 459.
Page 177: “Owing to
their position, it is inevitable that he [the occupant] should consider and mark
as criminals such of them [the civilian population] as commit hostile acts,
although they may be inspired by patriotic motives, and may be highly praised
for their acts by their compatriots. According to a generally recognised customary
rule of International Law, hostile acts on the part of private individuals are
not acts of legitimate warfare, and the offenders may be treated and punished
as war criminals. Even those writers [footnote omitted] who object to the term
‘criminals’ do not deny that such hostile acts by private individuals,
in contradistinction to hostile acts by members of the armed forces, may be
severely punished. The controversy whether or not such acts may be styled ‘crimes’
is again only one of terminology; materially, the rule is not at all controverted
Page 219: “Section
85. In a sense, the crews of merchantmen owned by subjects of a belligerent
belong to its armed forces. For these vessels are liable to be seized by enemy
men-of-war, and, if attacked for that purpose, they may defend [footnote omitted]
themselves, may return the attack, and eventually seize the attacking men-of-war.
The crews of merchantmen become in such cases combatants, and enjoy all the
privileges of the members of armed forces. But unless attacked, they must not
commit hostilities, and if they do so, they are liable to be treated as criminals,
just as private individuals who commit hostilities in land warfare.”
Page 404: “Section 210. Espionage and war treason do not play so large a part in sea warfare as in land warfare, but they may be employed. Since the Hague Regulations deal only with land warfare, there is no legal necessity for trying a spy in sea warfare by court-martial according to Article 30, although this is advisable.”
“CHAPTER IV. PUNISHMENT OF WAR CRIMES [extensive references omitted].
“Section 251. In contradistinction to hostile acts of soldiers by which the latter do not lose their privilege of being treated as lawful members of armed forces, war crimes are such hostile acts or other acts of soldiers or other individuals as may be punished by the enemy on capture of the offenders [footnote omitted]. It must, however, be emphasised that the term ‘war crime’ is used, not in the moral sense of the term ‘crime’, but only in a technical legal sense, on account of the fact that perpetrators of these acts may be punished by the enemy. For, although among the acts called war crimes are many which are crimes in the moral sense of the word (such, for instance, as the abuse of the flag of truce or assassination of enemy soldiers), there are others which may be highly praiseworthy and patriotic (such as taking part in a levy en mass on territory occupied by the enemy. But because every belligerent may, and actually must, in the interest of his own safety, punish these acts, they are termed war crimes, whatever may be the motive, the purpose, and the moral character of the act [footnote omitted]….
“Section 253: Violations of
rules regarding rules of warfare are war crimes only when committed without
an order of the belligerent Government concerned. If members of the armed forces
commit violations by order of their Government, they are not war criminals,
and may not be punished
[excerpt from footnote:
“… The contrary is sometimes
asserted [extensive references omitted] But [extensive list of authorities omitted] agree
with the view expressed in the text. The law cannot require an individual to
be punished for an act which he was compelled by law to commit…”
Continuation of the text:
“by the enemy; the latter may,
however, resort to reprisals. In case members of forces commit violations ordered
by their commanders, the members may not be punished, for the commanders are
alone responsible, and the latter may, therefore, be punished as war criminals
on their capture by the enemy [footnote omitted].
“The following are the more important violations that may occur:
(1) Making use of poisoned, or otherwise forbidden, arms and ammunition, including asphyxiating, poisonous, and similar gases.
(2) Killing and wounding soldiers disabled by sickness or wounds, or who have laid down arms and surrendered.
(3) Assassination, and hiring of assassins.
(4) Treacherous request for quarter, or treacherous feigning of sickness and wounds.
(5) Ill-treatment of prisoners of war, or of the wounded and sick. Appropriation of such of their money and valuables as are not public property.
(6) Killing or attacking harmless private enemy individuals. Unjustified appropriation and destruction of their private property, appropriation and destruction of their private property, and especially pillaging. Compelling the population of occupied territory to furnish information about the army of the other belligerent, or about his means of defence.
(7) Disgraceful treatment of dead bodies on battlefields. Appropriation of such money and other valuables found upon dead bodies as are not public property or arms, ammunition, and the like.
(8) Appropriation and destruction of property belonging to museums, hospitals, churches, schools, and the like.
(9) Assault, siege, and bombardment of undefended open towns and other habitations. Unjustified bombardment of undefended places by naval forces. Aerial bombardment for the sake of terrorising or attacking the civilian population.
(10) Unnecessary bombardment of historical monuments, and of such hospitals and buildings devoted to religion, art, science, and charity as are indicated by particular signs notified to the besiegers bombarding a defended town.
(11) Violations of the Geneva Conventions
(12) Attack on, or sinking of, enemy vessels which have hauled down their flags as a sign of surrender. Attack on enemy merchantmen without previous request to submit to visit.
(13) Attack or seizure of hospital ships, and all other violations of the Hague Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention.
(14) Unjustified destruction of enemy prizes [footnote omitted].
(15) Use of enemy uniforms and the like during battle; use of the enemy flag during attack by a belligerent vessel.
(16) Attack on enemy individuals furnished with passports or safe-conducts; violation of safeguards.
(17) Attack on bearers of flags of truce.
(18) Abuse of the protection granted to flags of truce.
(19) Violation of cartels, capitulations and armistices.
(20) Breach of parole [footnote omitted].
“Hostilities in Arms by private individuals.
“Section 254. Since International
Law is a law between States only and exclusively, no rules of International
Law can exist to prohibit private individuals from taking up arms, and committing
hostilities against the enemy. But private individuals committing such acts
do not enjoy the privileges of members of armed forces, and the enemy has, according
to a customary rule of International Law, the right to consider, and punish,
such individuals as war criminals. Hostilities in arms committed by private
individuals are war crimes, not because they are really crimes, but because the
enemy has the right to consider and punish them as acts of illegitimate warfare.
The conflict between praiseworthy patriotism on the part of such individuals
and the safety of the enemy troops does not allow of any solution. It would
be unreasonable for International Law to impose upon a belligerent a duty to
forbid the taking up of arms by his private subjects, because such action may
occasionally be of the greatest value to him, especially for the purpose of
freeing a country from the enemy who has militarily occupied it. Nevertheless,
the safety of his troops compels the enemy to consider and punish such hostilities
as acts of illegitimate warfare, and International Law gives him a right to
It must be particularly noted that a merchantman of a belligerent, which attacks enemy vessels without previously having been attacked by them, may be considered as a pirate [footnote omitted], and that the captain, officers, and members of the crew may, therefore be punished as war criminals to the same extent as private individuals who commit hostilities in land warfare [footnote omitted].
Section 255. Espionage and war treason, as has been explained above [footnote omitted], bear a twofold character. International Law gives a right to belligerents to use them.”
“On the other hand, it gives
a right to belligerents to consider them, when committed by enemy soldiers or
enemy private individuals within their lines [footnote omitted], as acts of
illegitimate warfare, and consequently punishable as war crimes…
“War treason consists of all
such acts (except hostilities in arms on the part of the civilian population,
and espionage) committed within the lines of a belligerent as are harmful to
him and are intended to favour the enemy. War treason may be committed, not
only in occupied enemy country, or in the zone of military operations, but anywhere
within the lines of a belligerent [footnote omitted].
“The following are the chief
cases of war treason that may occur:
(1) Information of any kind given to the enemy.
(2) Voluntary supply of money, provisions, ammunition, horses, clothing, and the like, to the enemy.
(3) Any voluntary assistance to the military operations of the enemy, be it as serving as guide in the country, by opening the door of a defended habitation, by repairing a destroyed bridge, or otherwise.
(4) Attempting to induce soldiers to desert, to surrender, to serve as spies, and the like; negotiating desertion, surrender, and espionage offered by soldiers.
(5) Attempting to bribe soldiers or officials in the interest of the enemy, and negotiating such bribe.
(6) Liberation of enemy prisoners of war [footnote omitted];
(7) Conspiracy against the armed forces, or against individual officers and members of them.
(8) Wrecking of military trains, destruction of the lines of communication or of telegraphs or telephones in the interest of the enemy, and destruction of any kind of war material for the same purpose.
(9) Circulation of enemy proclamations dangerous to the interests of the belligerent concerned [footnote omitted].
(10) Intentional false guidance of troops by a hired guide, or by one who offered his services voluntarily.
(11) Rendering courier, or similar, services to the enemy.
“Enemy soldiers – in
contradistinction to private enemy individuals – may only be punished
for war treason when they have committed the act of treason during their stay
within a belligerent’s lines under disguise. If, for instance, two soldiers
in uniform are sent to the rear of the enemy to destroy a bridge, they may not,
when caught, be punished for war treason, because their act was one of legitimate
warfare. But if they exchange their uniforms for plain clothes, and thereby
appear to be members of the peaceful private population, they may be punished
for war treason [footnote omitted].
“There are many acts of the
inhabitants of occupied enemy country which a belligerent may forbid and punish,
in the interests of order and safety of his army, although they do not fall
within the category of war treason, and are not therefore punishable as war
crimes. To this class belong all acts which violate the orders legitimately
given by an occupant of enemy territory [footnote omitted].
“Mode of punishment of war
“Section 257. All war crimes
may be punished [footnote omitted] with death, but belligerents may, of course,
inflict a more lenient punishment, or commute a sentence of death into a more
lenient penalty. If this be done and imprisonment take the place of capital
punishment, the question arises whether persons so imprisoned must be released
at the end of the war, although their term of imprisonment has not yet expired.
Some [footnote omitted] answer this question in the affirmative, maintaining
that it could never be lawful to inflict a penalty extending beyond the duration
of the war. But it is believed that the question has to be answered in the negative.
If a belligerent has a right to pronounce a sentence of capital punishment,
it is obvious that he may select a more lenient penalty and carry it out beyond
the duration of the war. It would in no wise be in the interest of humanity
to deny this right, for otherwise belligerents would be tempted always to pronounce
and carry out a sentence of capital punishment in the interest of self-preservation.”
Wheaton’s International Law,
Seventh English Edition, by A. Berriedale Keith, Vol. 2, “War”,
published by Stevens & Sons, Ltd., 1944, discusses “war crimes”
and “war treason” on pp. 183, 184, 185, 240-244. There is a discussion
of “espionage and war crimes” on pp. 218-220.
“Punishment of war crimes”
is discussed on pp. 586-588, stating “See also WAR CRIMES”.
Pages 183-5: [discussion of punishment
of prisoners of war for breaches of discipline; contains very little of any
“Military government is the
government imposed by a successful belligerent, either over a foreign province
or over a district retaken from insurgents, treated as belligerents. This supersedes,
as far as may be deemed expedient, the local law, and continues until the war
or rebellion is terminated, and a regular civil authority is instituted [footnote
Though the martial law of a commander is not really law at all in the ordinary sense of the term, it does not on that account justify military oppression. Its stringency will, of course, depend on the particular circumstances of each case; for example, on the amount of danger to which the military forces under the commander are exposed, and, in occupied territory, on the conduct of the local inhabitants; but in every case it should be administered in accordance with the universally recognized fundamental principles of humanity and honour, fairness and justice [footnote omitted].
“War crimes: Infringements
of this martial law are regarded as ‘war crimes’ . As a rule, no
penalty should be inflicted on offenders without previous inquiry and condemnation
by a court-martial consisting of a number of officers convened for the purpose [COMMENT: Note that public trial is not a requirement]. German authorities [COMMENT:
and British authorities as well; see above] speak also of a special kind of
war crime, which they call ‘war treason’ (‘Kriegsverrath’)
[sic]. The German Manual defines it as the act of injuring or endangering the
belligerent’s interests by deceit, or by sending messages to the opposing
army with regard to the position, movements, plans, etc. of the belligerent,
whether in the field or in occupation [footnote omitted]. The use of the expression
‘war treason’ as applied to the nationals of the enemy is, in certain
respects, unjustifiable; but, whatever terminology be adopted, the consequences
of the offence are the same. Thus certain acts committed openly by members of
the enemy’s armed forces are legitimate, but are regarded as acts of ‘war
treason’ if attempted or done in occupied territory or within the belligerent’s
lines, either by enemy civilians or by enemy soldiers in disguise. Between these
acts, and those which are sometimes styled ‘war crimes’, there is
really no essential basis of distinction, either in logic or in practice, and
it would be as well if the simpler term ‘war crime’ were alone used,
instead of an offensive term which implies, from its ordinary use, moral obliquity.
Examples [footnote omitted] of such acts are the destruction of military stores,
bridges, lines of communication, telegraphs, or telephones, or electric works;
wrecking military trains; cutting off water supply; setting free captured colleagues;
supplying information to the enemy; misleading the belligerent’s forces
when acting as guides; voluntarily aiding the enemy by gifts of money or supplies
or information; damage to or alteration of military signposts and notices; fouling
sources of water supply; and concealing animals, vehicles, supplies, and fuel
in the interest of the enemy; conspiracy against belligerent authority; opposition
to requisitions; possessing arms; entering prohibited places; stealing belligerent
property; photographing without authority; bribing the belligerent’s forces
to surrender or desert; circulating proclamations or making promises calculated
to imperil or damage the belligerent, etc. […] War crimes of all kinds
may be punished by death, and there is something to be said for the view that
lesser penalties may include imprisonment extending beyond the duration of the
war [footnote refers to Oppenheim, chapter II, Section 257]. […]
“Of ‘war crimes’ the number is naturally indefinite, depending as they do on the acts from time to time ordered to be done or forbidden to be done in the martial law proclamation of regulations of the invading or occupying commander. . Thus, in the Anglo-Boer War, the British military authorities proclaimed the following to be offences against their martial law: - Being in possession of arms, ammunition, etc. [footnote omitted]; travelling without a permit; sending prohibited goods; holding meetings other than those allowed; using seditious language; spreading alarmist reports; overcharging for goods; wearing uniforms without due authority; going out-of-doors between certain hours; injuring military animals or stores; being in possession, without a permit, of horses, vehicles, cycles, etc.; hindering those in execution of military orders; trespassing on defence works [footnote omitted]. Such offences, together with several others, were specified in the Japanese regulations made in the Russo-Japanese war [footnote omitted].”
This is quite simply the fact of the situation; the Nuremberg Trials had no basis in law.
CARLOS W. PORTER
JUNE 10, 2003
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