The records of the war crimes trials after World War II provide one of the most comprehensive formulations of the concept of war crimes. During that war the Allies agreed to try Axis war criminals. In Aug., 1945, Great Britain, France, the USSR, and the United States established a tribunal at Nuremberg to try military and civilian Axis leaders whose alleged crimes were directed at more than one national group. The trial opened in Nov., 1945. Voluminous evidence was presented to prove the plotting of aggressive warfare, the extermination of civilian populations (especially the Jews), the widespread use of slave labor, the looting of occupied countries, and the maltreatment and murder of prisoners of war. Among those sentenced to death (1946) were Hermann Goering, Joachim von Ribbentrop, and Julius Streicher. Hjalmar Schacht and Franz von Papen were acquitted. The court did not convict Nazi organizations or the German general staff. In 1961, Israel captured, tried, and later executed Adolf Eichmann.
A trial of 28 alleged Japanese war criminals was conducted (1946-47) by an 11-nation tribunal in Tokyo. Evidence similar to that presented against the Nazis brought death sentences to Hideki Tojo and others. The U.S. Supreme Court refused an appeal that was based on the ground that the international court was unlawful. There were many trials in national civil and military courts, including those of the Japanese generals Tomoyuki Yamashita and Masaharu Homma.
Critics have questioned the legal basis of some of the charges at the post-World War II trials. Individuals were found guilty of acts considered legal, or even required, by their nation at the time; such findings represent a violation of the concept of sovereignty. The plotting or carrying out of aggressive war had not been previously and explicitly called criminal, and the judges tended to define it very narrowly. A defendant was generally found guilty only if he had been involved in developing the policy, but not if he had simply carried it out.
Critics have also termed the trials an act of vengeance by the victors and questioned their practical use as a precedent. Personal liability for national action is very difficult to prove conclusively, and a nation will be reluctant to try its own leaders. Therefore, effective prosecution may be possible only if a nation is defeated (and then perhaps only if the documents are captured, as they were after World War II).
Both critics and supporters of the U.S. role in the Vietnam War have justified their positions on the basis of the post-World War II trials. Several Americans were tried for war crimes in this war, and Lt. William Calley was found guilty (see My Lai incident) of particularly disturbing acts against civilians that for many became emblematic of the horrors of the Vietnam conflict. In the 1990s, in reaction to war atrocities committed by various parties during the breakup of Yugoslavia, the United Nations established a tribunal in The Hague, the Netherlands, and attempted to gather evidence for prosecutions; Serbs, Croats, and Muslims have been charged or tried, including top civilian and military Bosnian Serb and Bosnian Croat leaders. The highest ranking official to be tried was former Yugoslavian president Slobodan Milošević, whose trial began in 2002 and was still underway when he died in 2006. In 2000 the Hague tribunal officially established rape, which was rampant during the Yugoslav civil strife, as a war crime. A UN tribunal was also set up (1997) in Tanzania to try those responsible for Hutu massacres of Tutsis in Rwanda in 1994 and in Sierra Leone to try persons accused of atrocities in that country's civil war (1991-2001).
Despite increasing international recognition of the need to prosecute war crimes, such offenses are still often unpunished. Although there have been many calls for prosecution of former Khmer Rouge leaders for war crimes, they have not yet been tried by Cambodia or internationally (due mainly to the length of time it took the Cambodian government to reach an agreement on trials with the United Nations; a mised Cambodian-international court was finally sworn in 2006). In Indonesia the national courts have tried a number of Indonesian officials and officers for war crimes in East Timor during 1999, but the proceedings ended mainly in acquittals or overturned convictions.
In 1998 the UN General Assembly voted in favor of a treaty authorizing a permanent international court for war crimes. The United States, China, and five other nations opposed the treaty, and 21 nations abstained. The treaty has been signed by more than 130 nations (including the United States), and formally came into effect in July, 2002 after 60 nations had ratified the treaty; the judges of the court were formally sworn in in 2003. Called the International Criminal Court (ICC) and located at The Hague, it may prosecute war crimes, genocide, crimes of aggression, and crimes against humanity. More than 100 nations have now ratified the treaty; notable exceptions include China, Russia, and the United States. The ICC has pursued cases involving alleged war crimes in the Central African Republic, the Democratic Republic of the Congo, Sudan, and Uganda; its most notable action has been issuing (2009) a warrant for the arrest of President Omar Ahmed al-Bashir of Sudan in connection with war crimes and other offenses in Darfur.
Under the G. W. Bush administration, the United States opposed implementation of the treaty, out of fear that American officials or military personnel might be arrested abroad on baseless charges. In May, 2002, the United States repudiated its signing of the treaty and indicated that it would refuse to cooperate with the court. The U.S. government subsequently insisted (2002, 2003) that U.S. forces used as UN peacekeepers be exempted from prosecution by the court, and in 2003 it suspended military aid to nations that did not similarly exempt U.S. citizens serving within their borders. In 2004, following the Iraq prisoner abuse scandal, the United States was unable to secure a further exemption from the United Nations.
See S. Glueck, War Criminals (1944); R. H. Jackson, The Case against the Nazi War Criminals (1946); J. J. Heydecker and J. Leeb, The Nuremberg Trial (tr. 1962); T. Taylor, Nuremberg and Vietnam (1970); N. E. Tutorow and K. Winnovich, ed., War Crimes, War Criminals, and War Crime Trials (1986); A. Neier, War Crimes (1998).
Note that this is a Belgian law and is different from the International Criminal Court, which is a treaty body to try war crimes, and also different from the International Court of Justice, which is a U.N. body to settle disputes between countries. Both of these bodies reside in nearby The Hague, Netherlands, although some have said that American Servicemen's Protection Act passed by the US was also directed against the War Crimes Law.
The law reached prominence after the Rwandan Genocide. According to the Washington Post, the process of prosecution of Rwandans in Belgium for crimes committed in the violence were set in motion by Martine Beckers, a Brussels resident, whose sister Claire called her to tell her of being attacked by soldiers, who soon after killed her, her family, and 10 other villagers who were unable to reach a United Nations peacekeepers' compound.
What made this Belgian law controversial was that it afforded the right to anyone to submit a war crime for prosecution in Belgian courts that occurred anywhere in the world, whether on Belgian territory, and whether a Belgian national was involved as either criminal or victim. This concept called universal jurisdiction, or universal competence, was recently used in Germany to indict high-ranking US officials for their involvement in prisoner abuse in the war on terror under the command responsibility.
The law soon ran into trouble when a number of parties worldwide filed cases criticized as politically motivated against leaders of various nations.
Over the years filings included cases against American officials, including George H. W. Bush, Dick Cheney, Colin Powell, Norman Schwarzkopf and Tommy Franks. Cases had also been filed against the leaders of many other countries, such as Iraq and Israel, and Cuba's Fidel Castro. The paperwork backing several of these filings was very limited, consisting out of a single fax or several pages.
Critics assailed the law as an attempt to circumvent the sovereignty of other states and become a venue for partisan show trials of propaganda value but no legal consequence. Proponents respond by arguing that universal jurisdiction is often the only recourse victims of war crimes have, and that under the UN Charter countries are already obliged to prosecute those involved in war crimes.
In September of that year, the Belgian Supreme Court threw out the cases against the former President Bush and other US officials, as well as Israelis.
Six human rights groups (Amnesty International Belgium, La Ligue des Droits de l'Homme (League for the Rights of Man), Liga voor Mensenrechten (League for Common Rights), la Fédération Internationale des Droits de l'homme (International Federation for Human Rights), Avocats sans Frontières (Lawyers without Borders) and Human Rights Watch) called that loss of the universal jurisdiction component "a step backwards in the global fight against the worst atrocities."
Human Rights Watch outlined the reduced scope of the law: