War Crimes, Genocide, and Justice

A Global History

D. Crowe

• Publisher: Palgrave Macmillan
• Year: 2014
• Print ISBN: 9780230622241
• eBook ISBN: 9781137037015
• Topic: Law
• Subtopic: Military & Maritime History
• Index: Law

In this sweeping, definitive work, historian David Crowe offers an unflinching account of the long and troubled history of genocide and war crimes. From ancient atrocities to more recent horrors, he traces their disturbing consistency but also the heroic efforts made to break seemingly intractable patterns of violence and retribution.

Chapter 1

Crimes of War: Antiquity to the Middle Ages

I [Sung K’ang] have heard that Ts’in and Ts’oo are fighting together, and I am going to see the king of Ts’oo and persuade [them] to cease hostilities . . . Mencius said: “What course will you take to try to persuade them?” Kang answered, “I will tell them how unprofitable their course is to them.” “Master,” said Mencius, “your aim is great, but your argument is not good.” . . . [While all will] rejoice in the cessation of war [it shall be driven by] the pursuit of profit . . . [But] if you, starting from the ground of benevolence and righteousness, offer your counsels to the kings of Ts’in and Ts’oo . . . so as to stop the operations of their armies, . . . [then all will] find their pleasure in benevolence and righteousness.¹

—Mencius

War crimes and genocide are as old as history itself. So are customs, regulations, and laws that governed the behavior of armies in the field, particularly when it came to the treatment of individuals during times of war, be they combatants or civilians. Yet many scholars of international law do not think that these constraints or guidelines in antiquity fell within the confines of traditional interpretations of what constitutes an international legal order. According to Wilhelm G. Grewe, this could

only be assumed to exist if there is a plurality of relatively independent (although not necessarily equal-ranking) bodies politic which are linked to each other in political, economic and cultural relationships and which are not subject to a superimposed authority having comprehensive law-making jurisdiction and executive competence. In their mutual relations these bodies politic must observe norms which are deemed to be binding on the basis of a legal consciousness rooted in religious, cultural and other common values.²

Lassa Oppenheimer, whose 1905 work—International Law: A Treatise—is considered by some to be one of the most important works in international law, wrote that international law, “essentially a product of Christian civilization,” is a body of rules on the relations between sovereign nations.³

Over the past few decades, a growing number of non-Western scholars have underscored the Eurocentricity of such definitions, and challenged the idea that the Western view of what is and is not international law was in itself a contradiction of the above definitions, since it was forced on many parts of Africa and Asia by nineteenth-century European colonial powers. Eric Yong-Joong Lee has gone so far as to conclude that “international law was regarded as just a skillful instrument for the advancing powers of the West to plunder Asian-African states.”⁴ But what Robert Cryer calls the world’s first “international criminal law regime”⁵ was, according to R. P. Anand, in many ways a form of victor’s justice or “ruler’s law” forced on Asia and Africa by the West in the nineteenth century.⁶

While it could be argued that such sentiments are a reflection of the deep, lingering scars of centuries of Western colonial conquest and abuse in the Americas, Asia, Africa, and the Middle East, they also represent what some legal scholars see as a dismissal of legal norms that date back five millennia. While few would argue that the various statements, for example, in ancient Near Eastern, Greek, Roman, Chinese, Muslim, Mongolian, or medieval European texts, regarding the behavior of armies in the field could be put in the same context as the modern laws of war, such expressions about the nature of war as well as the behavior of soldiers and armies during conflicts, regardless of their source, could be viewed as “cultural regulations of violence.”⁷ The nature of these sources, be they religious, literary, or historical, is and was a reflection of the societies that gave rise to such accounts and statements.

War in Antiquity

The Ancient Near East

The Holocaust, the Rwandan genocide, and Srebrenica have shown us that brutality in war has changed little over the ages despite the establishment of a sophisticated body of international law designed to prevent and adjudicate such atrocities. War in antiquity, particularly in the ancient Middle East, “operated in a world in which belief in the supernatural power of the gods was an omnipresent assumption.”⁸ Divination, which often included reading the entrails of animals, was considered an integral part of military planning. Oracles and various natural phenomena could also point to the displeasure of the gods and thus bring a campaign to a halt. In such cases, a monarch and/or his priests would make special offerings to “re-establish good relations with the gods.”⁹ Thus military campaigns took on a special military-religious spirit.

One of the early works on such campaigns is the Epic of Gilgamesh, a Sumerian-Akkadian epic poem whose earliest version dates to the twenty-second century BCE.¹⁰ It centers around the story of the anthropomorphic king Gilgamesh, who, along with his friend Enkidu, undertakes a challenging odyssey that ultimately leads to a search for immortality. One part of the epic deals with a conflict with Humbaba, a Satan-like figure who guards the sacred fortress of the Cedar Forest. According to William J. Hamblin, the Epic of Gilgamesh “best reflects military practices of the late third or early second millennium,” while the battle with Humbaba on Mount Lebanon “represents the military ideal, if not necessarily the reality,” of warfare at the time.¹¹ After Gilgamesh and Enkidu slayed Humbaba, Enkidu “pulled out Humbaba’s lungs and beheaded him. They then laid waste to his domain, the cedar forests of Mt. Hermon and Mt. Lebanon.”¹²

Earlier descriptions of war in third-millennia accounts indicate that, at least theoretically, wars were not fought unless they were in self-defense or so commanded by “the gods.” Once a military course of action was chosen, the result could be devastating. A ruler in Lagash, for example, warned the neighboring city-state of Umma:

Be it known that your city will be completely destroyed! Surrender! Be it kno[wn] that Umma will be completely destroyed! Surrender!¹³

Rimush, the son of Sargon of Akkad, who created the first united empire in Mesopotamia in the twenty-third century BCE, treated captives of war with great brutality. After defeating an army from Ur and Lagash, “he expelled 5,985 men [noncombatants] from their two cities and annihilated them.” And after a rebellion in some of the city-states in his empire, he “filled the Euphrates River with their [the rebels’] bodies.”¹⁴

Hamblin says that such treatment was common after wars in the ancient Middle East.

Royal prisoners were often marched naked and in stocks back to the capital of the victorious king, where they were paraded in triumph, brought before the gods, and ritually debased by having the victorious king stand on their heads or bodies in the courtyards before the temples of the gods. The great hero Shulgi [twenty-first-century BCE neo-Sumerian ruler] boasts that he will “set my foot on his [the defeated king’s] head . . . I will make him die amidst dripping blood; the enemy was ritually executed by being disemboweled in what probably amounted to a form of human sacrifice.”¹⁵

In the realpolitik world of the ancient Near East, whether mythical or real, there was no room in war or politics “for considerations of moral obligations.”¹⁶

Zimri-Lim, the eighteenth-century BCE king of Mari, used psychological warfare as a tactic. Most captives were enslaved, though some were tortured and mutilated “to terrorize enemies.” Victorious troops would, on occasion, cut off the heads, legs, and arms of the enemy and send them to the king, who had the body parts put on display.¹⁷ Others were brutally tortured. One officer

pierced [a prisoner’s] nose and placed a nose-rope [in it]. He opened [wounds] in both thighs, skinned his rib-cage, cut off his ears. He [the prisoner] passed through agonies. 30 times they took him [the prisoner] around the city . . . His [the prisoner’s] father was present.¹⁸

One of antiquity’s more storied leaders, Hammurabi, conquered Mari along the present-day Syria-Iraq border in 1761 BCE. Two years later, angry over continued resistance to Babylonian rule there, he ordered its city walls be torn down and “the land [turned] into rubble heaps and ruins.”¹⁹ His Code of Hammurabi underscored the militant nature of Hammurabi’s threats against anyone who challenged his power. The gods, it said, called him “to destroy the wicked and the evil-doers,” and gave him “mighty weapons” to “uproot” the enemy. And if anyone challenged his authority, Ishtar, the “goddess of fighting and war,” would “create disorder and sedition for him, strike down his warriors, that the earth may drink their blood, and throw down the piles of corpses of his warriors on the field.”²⁰

Egypt

The predilection for violence was also a part of Egyptian warfare. Isolated and protected by deserts, warfare during early Egyptian history centered more around economically driven “military expeditions” into Nubia and the Sinai. Yet a sixth-dynasty account describes an Egyptian campaign against the Libyans under Pharaoh Pepy I (Phiops) as one of great brutality and destruction:

This army returned in safety

It had ravaged the sand-dwellers’ land . . .

It had flattened the sand-dwellers’ land . . .

It had sacked its strongholds . . .

It had cut down its figs, its vines . . .

It had thrown fire in all its [mansions] . . .

It had slain its troops by many ten-thousands . . .

[It had carried] off many [troops] as captives.²¹

One of the remarkable things about ancient Egypt was the durability of its political system. With the exception of the Hyksos era in northern Egypt in the seventeenth and sixteenth centuries BCE, Egypt enjoyed almost 1,600 years of political independence as an autonomous nation ruled by pharaohs. Warfare in ancient Egypt “was a heady mixture of violence, religious ritual, magic, and divine sanction and intervention.” It was also a “ritual ac...

Table of contents

• Cover
• Title
• 1 Crimes of War: Antiquity to the Middle Ages
• 2 War and Crimes in China and Postmedieval Europe
• 3 Colonialism: The Americas, Asia, and Africa
• 4 Birth of the Modern Laws of War—Lieber to Versailles
• 5 Peace, Law, and the Crimes of World War II
• 6 The Nuremberg IMT Trial
• 7 The Tokyo IMT Trial
• 8 Post–World War II National Trials in Europe and Asia
• 9 The Genocide and Geneva Conventions: Eichmann,  Lemkin, Tibet, Guatemala, and the Korean War
• 10 IHL: Soviet-Afghan War, Saddam Hussein,  Ad Hoc Tribunals, and Guantánamo
• Epilogue: The ICC
• Notes
• Bibliography
• Index