War crimes difficult to prove except that sometimes the facts speak for themselves
According to the Nuremberg Tribunal crimes against peace, crimes against humanity and war crimes are committed by individual persons not by abstract entities. Superior orders are not a defence to such crimes and its corollary of command responsibility is now part of international criminal law.
Crimes against peace were defined by the Nuremberg Charter as planning, initiating or waging a war of aggression, or a war in violation of treaties, agreements, or assurances or conspiracy to commit such a war. It was argued by the defendants at Nuremberg that engaging in a war of aggression was an act of state that could not be committed by individuals as it was an act of state, but the Tribunal rejected the argument holding that that only by punishing individuals can international criminal law be enforced.
War crimes are violations of the laws and customs of war that fall into three subcategories: serious crimes including but not confined to murder, rape and enslavement of the civilian population; murder or other serious ill treatment of prisoners and killing of hostages; and plunder of public and private property and the wanton destruction of cities, towns and villages not justified by military necessity.
Crimes against humanity include murder, extermination, enslavement, deportation and other inhumane acts committed against the civilian population before or during war; persecution on political, racial, religious in execution of or in connection with any crime whether or not it is a crime in the country at war.
Genocide became a specific crime against humanity by the Genocide Convention in 1948. It involves acts committed with intent to destroy a national, ethnically, or religious group as such by killing, causing serious physical or mental harm as well as inflicting conditions calculated to destroy the group and measures intended to prevent birth in a group or transferring children from one group to another and includes incitement and attempts to commit genocide.
The Nuremberg Tribunal was set up following Germany’s unconditional surrender, and it derived its competence because it was held that the Allies could do jointly what they could do singly. The Nuremberg Tribunal declared that its process was not an arbitrary exercise of power by the victorious nations. It applied international law as it stood at the time of the creation of the Tribunal. The fact that it was concerned with individual criminal responsibility of members of Germany’s Nazi defeated regime was, however, a kind of victor’s justice – for example no one was prosecuted for targeting civilians and burning German cities like Dresden.
Nevertheless the Nuremberg Charter and Tribunal were important landmarks in holding individuals responsible for wartime crimes. The Soviet Union that included both Russia and Ukraine was very much in favour of holding a trial of the Nazi war criminals at Nuremberg. The British Prime Minister Winston Churchill was against it as he thought it might set a dangerous precedent. He would have preferred the Nazi leaders lined up and shot as they were obviously guilty, but was prevailed upon by Franklin Roosevelt and Joseph Stalin who wanted them tried by an international tribunal: Roosevelt because due process was the American way and Joseph Stalin because he saw great propaganda value in a show trial.
The defendants were members of Hitler’s inner circle including the Air Force chief and acting Fuhrer, Hermann Goering, Hitler’s deputy Rudolph Hess, Hitler’s architect Albert Speer and his foreign minister Joachim Von Ribbentrop.
Goering was convicted of all charges but cheated the hangman by swallowing cyanide and Ribbentrop was the first to hang. The case against both these two urbane Nazis for planning and waging wars of aggression were easy to prove given one was responsible for the Luftwaffe that attacked the countries the Nazis conquered and the other was responsible for the foreign policy that decided to attack them.
Rudolph Hess was also convicted but was not executed because he had bizarrely flown to Britain in 1941 where he was detained until the end of the war. He was sentenced to life and died in prison. Albert Speer got off lightly for exploiting slave labour while he was minister for war production in the later stages of the war and served 20 years.
Many individual states have criminal laws giving their courts a universal jurisdiction over international crimes including war crimes and crimes against humanity, but prosecutions depend on the arrest or extradition of suspected war criminals which is problematic but not impossible – Mossad managed to kidnap Adolph Eichmann and tried convicted and executed him in Israel for his part in the Holocaust.
The International Criminal Tribunals for the former Yugoslavia and for Rwanda were set up pursuant to UN Security Council Resolutions specifically to prosecute individuals responsible to violations of international humanitarian law in those countries.
The best-known recent prosecution was that of the president of Yugoslavia Slobodan Milosevic who died of a heart attack during his trial in 2006. The two Bosnian Serb leaders Radovan Karadzic and Ratko Mladic were both found guilty of genocide and received life sentences.
The International Criminal Court of Justice was set up by the 1998 Rome Treaty and is a milestone in the prosecution of war criminals, but its jurisdiction is limited to state parties or with the consent of non-parties; Russia and Ukraine are not parties to the treaty though if Ukraine ratifies the treaty, acts committed on its territory could be prosecuted.
Arguably, Russia’s invasion of Ukraine is a war of aggression that should not be difficult to prove. Ukraine was given assurances about its security by Russia, the US and Britain that in consideration of the assurances about her security Ukraine would surrender the nuclear weapons on its territory to Russia for decommissioning. Therefore those in the Russian government including President Vladimir Putin with individual command responsibility for ordering the invasion of Ukraine in breach of Russia’s assurances could individually be held criminally responsible though in my humble opinion their prosecution could only take place – if at all – with the consent of Russia.
War crimes and crimes against humanity are notoriously difficult to prove except that sometimes the facts speak for themselves. It is impossible to impute the wanton destruction of Mariupol after it has been wiped out as a functioning inhabitable city on anyone other than its Russian invaders who are attacking to gain control of it in callous disregard of the laws of war.
Alper Ali Riza is a queen’s counsel in the UK and a retired part time judge
