Crimes of State Past and Present

Government-Sponsored Atrocities and International Legal Responses

David Crowe, David M. Crowe

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9780415509008
• eBook ISBN: 9781317986812
• Edition: 1
• Topic: History
• Subtopic: 20th Century History
• Index: History

War Crimes and acts of genocide are as old as history itself, but particularly during the 20th century. Yet what are war crimes and acts of genocide? And why did it take the world so long to define these crimes and develop legal institutions to bring to justice individuals and nations responsible such crimes? Part of the answer lies in the nature of the major wars fought in the 20th century and in the changing nature of warfare itself.

This study looks at war crimes committed during the Second World War in the USSR, Yugoslavia, Germany, and efforts to bring the perpetrators to justice. This led to successful postwar efforts to define and outlaw such crimes and, more recently, the creation of two international courts to bring war criminals to justice. This did not prevent the commitment of war crimes and acts of genocide throughout the world, particularly in Asia and Africa. And while efforts to bring war criminals to justice has been enhanced by the work of these courts, the problems associated with civil wars, command responsibility, and other issues have created new challenges for the international legal community in terms of the successful adjudication of such crimes.

This book was based on a special issue of Nationalities Papers.

War Crimes and Genocide in History, and the Evolution of Responsive International Law

David M. Crowe

War crimes and genocide are as old as history itself. So are regulations and laws that protect individuals during time of war, whether they be combatants or civilians. The Chinese philosopher Sun Tzu wrote in the fifth century BCE that it was important to treat “captured soldiers well in order to nurture them [for our use]. This is referred to as ‘conquering the enemy and growing stronger.’”¹ Yet several centuries later, Qin Shi Huangdi, China’s first emperor, committed horrible atrocities during his military campaigns to unite China.² Eric Yong-Joon Lee adds that it should be remembered that the Qin emperor also created that country’s “first managed international legal order.”³ But, according to Robert Cryer, it was the West, not Asia, that created the world’s first “international criminal law regime.”⁴ This “regime,” R. P. Anand argues, was, in many ways, a form of “Victor’s Justice” or “ruler’s law,” since it was forced on Asia and Africa by the West in the nineteenth century.⁵

Wartime atrocities, of course, abound in global history. The Bible is filled with accounts of military crimes against civilians during times of war. The book of Second Kings states that after King Menahem of Israel sacked the town of Tiphsah, “he massacred [its people] and ripped open all of its pregnant women” because it had refused to surrender to him.⁶ In fact, as Rabbi Joseph Telushkin has noted,

ancient documents from Mesopotamia to Egypt abound in joyous references to annihilating neighbors—frequently the very same peoples the Bible mentions. For example, in the Amarna letters, the Amorites [Babylonians] were said to be troublesome foes of the house of Egypt’s Pharaohs and deserved annihilation … Officials writing these letters to [the Pharaoh] promised to bind all the Amorites: “a chain of bronze exceedingly heavy shall shackle their feet … and we [shall] not leave one among them.”⁷

Roman law, which was drawn from the ancient Greeks, usually forbade the wholesale slaughter of captives after a campaign, though Cato the Elder (234–149 BCE), a prominent Roman politician and general, reportedly ended each of his speeches in the Senate with the phrase, Ceretum censeo delendam esse Carthanginem (Besides, I think that Carthage must be destroyed).⁸ His reference was to the century-old struggle (the Punic Wars) between Rome and Carthage over domination of the western Mediterranean world. But the spirit of Cato’s words entered subsequent histories of the Punic Wars. Polybius, for example, claimed that Hannibal encouraged his troops, who were starving, to “eat [the] human flesh” of the local inhabitants as his army made its way from Spain to Italy during the Second Punic War (218–201 BCE).⁹

At the end of the Third Punic War (149–146 BCE), Roman forces totally destroyed Carthage, after Hasdrubal, Carthage’s military leader, tortured Roman prisoners-of-war on the walls of the besieged city as Roman troops looked on. Once Carthage fell, the Romans plundered the city and enslaved its remaining population.¹⁰ Two centuries later, the Roman Jewish historian Josephus, who wrote about Jewish rebels who fled to Masada with their families at the end of the Great Jewish Revolt (66–70 CE) to avoid the “miseries” they expected at the hands of the Romans if captured. Later, when it was apparent that the Romans would take Masada, the rebels committed mass suicide to avoid Roman “abuse” of their women and the enslavement of their children.¹¹

The collapse of the western Roman Empire in the latter half of the fifth century had a dramatic effect on Europe. What followed were long centuries of decay amid European efforts to reconstitute itself along new nation-building lines. This effort was complicated by the emergence of a dynamic new faith in the eastern Mediterranean world—Islam.¹² It spread quickly after the death of the Prophet Mohammed in 632, and within a century Muslim leaders had created an empire that swept from the Middle East to most of Spain. What followed was a dramatic clash of civilizations that led to some of the worst brutality in medieval history.¹³

By the late tenth century, the once-besieged Byzantine Empire began to retake territories from the Muslims along their eastern borders. Within a century, though, a new Muslim power, the Seljuk Turks, began to challenge Byzantine power in Asia Minor. After successes at the battle of Manzikert in 1071, where Turkish forces captured the emperor, Romanos IV Diogenes, they moved into Asia Minor and played a role in restoring Sunni Muslim control over Jerusalem.¹⁴ Western Europe responded with four major crusades designed to retake the Holy Lands from the Muslims. They pitted the best of Europe militarily against the Islamic world. With the exception of the First Crusade (1095–1099), which succeeded in retaking Jerusalem and a modest amount of territory around it, the Crusades were unsuccessful in achieving the complex goals envisioned by Pope Urban II, who issued the call for the First Crusade in 1095.¹⁵

What the Crusades did achieve was the introduction of a level of brutality to warfare not seen since Roman times, particularly towards Muslims. Driven by what David Nicolle calls the “sheer [religious] fanaticism” of the Crusaders, these Christian “holy warriors” committed untold atrocities against Muslim civilians. “Torture and mutilation became a feature of the early decades of Crusader warfare in the Middle East.”¹⁶ After the battle of Antioch, the Crusaders killed all of the men in the city and sold the women and children into slavery. They also killed all of the Muslims and Jews in Jerusalem because they “saw their God as a punisher” and their victims as infidels. Several myths arose after the First Crusade about Christian cannibalism. One centered on a Norman leader, Tafur, whose troops, according to one medieval writer, ‘“boiled the adults, placed the children on the spit and would eat them after roasting them’” after taking the city of Ma’arra. Another claimed that “our men would eat not only Turks and Saracens but also dogs.’”¹⁷

How could such behavior take place in the early part of this so-called age of chivalry? For one thing, this code of honor between knights was just that, “little more than an insurance policy for the fighting upper classes.”¹⁸ In fact, in some ways, the age of chivalry, which reached its peak at the height of the Middle Ages, was a reaction both to the violence of early medieval warfare and the Roman Catholic Church’s efforts to temper the indiscriminate violence of war through its Pax Ecclesie (Peace of God) and Treuga Dei (Truce of God) efforts. Different wars dictated different codes of conduct for knights. The guerre mortelle (war to the death), meant either killing or enslaving the enemy. Guerre mortelle was waged “against Muslims and pagans.”¹⁹

The atrocities committed by Christian knights during the Crusades stunned the Muslim world. They were driven not only by the idea that Muslims practiced a pagan faith but also by images from Byzantine sources that depicted the Muslims as extremely violent.²⁰ This deep hatred fed other stereotypes that fueled much of the Christian violence against the Muslims during the Crusades.²¹

The brutality of the First Crusade and the sacking of one of Islam’s most holy sites, the Haram al-Sharif (Dome of the Rock), “has been etched deeply in the collective memory of Muslims.” And when Salah al-Din (Saladin) retook Jerusalem in 1187, he was as magnanimous in victory towards the city’s inhabitants as the Crusaders had been violent.²² This is not to say that Muslim armies could not be just as brutal as their Christian counterparts. After the First Crusade, the Muslims adopted similar practices in some of their campaigns.²³

Muslim armies operated with their own codes of war. Abu Bakr, Mohammed’s father-in-law and successor, laid down a firm set of laws of war for his troops that were about to move into Byzantine territory:

Stop, o people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not the enemies flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.²⁴

A century later, Islamic scholar Al-Shaybani wrote that soldiers in battle should “not cheat or commit treachery, nor should you mutilate anyone or kill children.”²⁵ Such strictures, of course, did not insure civilized Muslim behavior on the battlefield. According to Javaid Rehman, “certainly wars and other societal conflicts of early Islamic experience by their very nature were destructive and bloody.”²⁶

Medieval European attitudes towards war were laid out in St. Thomas Aquinas’ Summa Theologiae [Sum of Theology]. He drew many of his ideas from St. Augustine’s early fifth-century classic City of God.²⁷ At a distance, Aquinas argued, war was “always sinful,” though he did think there were three rationales for a “just war”—it had to be waged by one who held “supreme authority” in a state, it had to be waged to “avenge wrongs,” and it had to “have a rightful intention.”²⁸

Such ideas did little to still the indiscriminate, inhumane violence of medieval warfare. Yet there were also emerging at this time new ideas about individual rights vis-à-vis those of the state, later an important issue in the development of international law. The Magna Carta (1215) gives some hints of this new shift as does Emperor Charles V’s Constitutio Criminalis Carolina (1530/1532) or the “Carolina of 1532,” whose criminal clauses identified a number of acts as severe crimes. In addition, its guidelines for the indiscriminate use of torture for those accused of witchcraft placed restrictions on such practices, thus providing indirect protections for individuals accused of such crimes. Regardless, the torture clause also spurred a dramatic rise in witchcraft trials throughout the empire over the next century²⁹

This struggle between sovereign and individual rights continued in the midst of the dramatic political, intellectual, and religious upheavals that swept Europe in the sixteenth and seventeenth centuries. Martin Luther’s emphasis on what Richard Marius calls his paradoxical concept of the “priesthood of all believers” vis-à-vis that of the Roman Catholic Church, gives a hint of the vibrant power of the idea of the individual in a s...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• CONTENTS
• Introduction
• 1 War Crimes and Genocide in History, and the Evolution of Responsive International Law
• 2 “The Last Bullet for the Last Serb”: The Ustaša Genocide against Serbs: 1941–1945
• 3 Hitler’s Rassenkampf in the East: The Forgotten Genocide of Soviet POWs
• 4 “Only the National Socialist”: Postwar US and West German Approaches to Nazi “Euthanasia” Crimes, 1946–1953
• 5 Justice 30 Years Later? The Cambodian Special Tribunal for the Punishment of Crimes against Humanity by the Khmer Rouge
• 6 Adjudication Deferred: Command Responsibility for War Crimes and US Military Justice from My Lai to Haditha and Beyond
• Index