War Crime

The term war crime has been difficult to define with precision, and its usage has evolved constantly, particularly since the end of World War I. The first systematic attempt to define a broad range of war crimes was the Instructions for the Government of Armies of the United States in the Field—also known as the “Lieber Code” after its main author, Francis Lieber—which was issued by U.S. President Abraham Lincoln and distributed among Union military personnel in 1863. For example, the Lieber Code held that it was a “serious breach of the law of war to force the subjects of the enemy into service for the victorious government” and prohibited “wanton violence committed against persons in the invaded country,” including rape, maiming, and murder, all of which carried the penalty of death. More recently, definitions of war crimes have been codified in international statutes, such as those creating the International Criminal Court and the war crimes tribunals in Yugoslavia and Rwanda, for use in international war crimes tribunals. In contrast to earlier definitions, modern definitions are more expansive and criminalize certain behaviours committed by civilians as well as by military personnel.

Immediately following World War I, the victorious Allied powers convened a special Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties. The commission's report recommended that war crimes trials be conducted before the victors' national courts and, when appropriate, before an inter-Allied tribunal. The Allies prepared an initial list of about 900 suspected war criminals and submitted the list to Germany. Although heads of state traditionally had enjoyed immunity from prosecution, the commission's main target was Germany's Emperor (Kaiser) William II, whom most of the Allies (though not the United States) wished to hold responsible for numerous violations of the laws of war. William, however, took refuge in The Netherlands, which refused to extradite him, and he was never tried. Most of the remaining suspected war criminals on the list similarly managed to avoid prosecution, because Germany was reluctant to turn them over to the Allies. Instead, a compromise was reached whereby the Allies permitted a small number of suspects to be tried in Germany before the Supreme Court in Leipzig. These prosecutions resulted in few convictions, with most sentences ranging from a few months to four years in prison.

The next major attempt to prosecute war criminals occurred in Europe and Asia after World War II. Throughout the war, the Allies had cited atrocities committed by the Nazi regime of Adolf Hitler and announced their intention to punish those guilty of war crimes. The Moscow Declaration of 1943, issued by the United States, Great Britain, and the Soviet Union, and the Potsdam Declaration of 1945, issued by the United States, Great Britain, and China (and later adhered to by the Soviet Union), addressed the issue of punishing war crimes committed by the German and Japanese governments, respectively.

At the war's conclusion, representatives of the United States, the United Kingdom, the Soviet Union, and the provisional government of France signed the London Agreement, which provided for an international military tribunal to try major Axis war criminals whose offenses did not take place in specific geographic locations. This agreement was supported by 19 other governments and included the Nürnberg Charter, which established the Nürnberg tribunal and categorized the offenses within its jurisdiction. The charter listed three categories of crime: (1) crimes against peace, which involved the preparation and initiation of a war of aggression, (2) war crimes (or “conventional war crimes”), which included murder, ill treatment, and deportation, and (3) crimes against humanity, which included political, racial, and religious persecution of civilians. This last category included what is commonly called genocide.

The term genocide was coined by the Polish American legal scholar Raphael Lemkin and first appeared in print in his work Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (1944). The Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations in 1948, defined genocide as including killing or inflicting serious physical or mental injury on members of a national, ethnic, racial, or religious group with the intention of bringing about the group's destruction, in whole or in part. The convention made genocide an international crime that could be prosecuted in the court of any country. Because the Nürnberg trials preceded the convention, however, Nazi war criminals were not prosecuted for genocide.

The Portuguese Jesuit Manuel de Nóbrega in 1559 said, "At the beginning of the world all was homicide." This was a suspect but significant statement. From the 16th century, many Europeans began looking to ancient precedents, even for genocide, a phenomenon that had become more frequent after European expansion accelerated in 1492. A cult of antiquity inspired those on the brink of modernity even as they took up technological innovations, including some that facilitated mass murder.

Nóbrega's claim contained more than a grain of truth. Mass killing was no "new world" novelty. Some prehistorians suspect that ancestors of modern humans exterminated Europe's archaic Neanderthal population. Later archaeological evidence suggests that during the stone age, "competing local communities may have resorted even to annihilation of one another." Over 5,000 years ago, for example, Mesolithic hunter-gatherers in a region of what is now Germany carefully positioned the skulls of thirty-four men, women, and children in a cave. Archaeologists found these "trophy" skulls arranged in groups "like eggs in a basket". Most bore evidence of multiple blows with stone axes.

The rise of agriculture in the Neolithic era supplied a surplus that could sustain systematic warfare. If Europe's first farmers were more civilised than prehistoric hunters, well-provisioned agricultural societies may also have been more prone to mass killing. Evidence exists of the destruction of entire communities. Excavation at the early Neolithic site of Talheim in Germany revealed that 7,000 years ago, a group of killers armed with six axes massacred eighteen adults and sixteen children, then threw their bodies into a large pit. A late Neolithic site in France, dating from 2,000 bce (before common era), yielded evidence of the hasty burial of 100 people of all ages and both sexes, many with arrowheads embedded in their skeletons. While some archaeologists date the origins of war earlier, in the Mesolithic era, others argue that armed conflicts began only when prehistoric hunters became farmers, settled down, and fought over land. Palisades and ditches defended many Neolithic villages.

Some ancient precedents reveal early preoccupations with land use. According to the Bible, for example, extreme violence often accompanied conflicts over land and sometimes pitted prospective farmers against ethnically alien town dwellers. While God promised the Israelites "a good and spacious land, a land flowing with milk and honey" (Exodus 3:8), the book of Deuteronomy added: "Of the cities . . . which the Lord thy God doth give thee for an inheritance, thou shalt save alive nothing that breatheth" (20:16). The book of Joshua (6-10) describes Israelite massacres of the entire populations of seven cities, including Jericho and three Amorite kingdoms. "Joshua smote all the country of the hills, and of the south, and of the vale, and of the springs", and "utterly destroyed all that breathed" (10:40).

Animosity toward non-agriculturalists - nomadic, pastoral, or urbanised - may have fuelled some of the conflicts described in the Old Testament. One target of Deuteronomy were the Amorites, whom the Sumerians termed a pastoral people who "do not grow grain". In more urbanised Canaan, the Israelite arrival apparently brought agricultural terracing and sedentarisation to previously sparsely settled areas. The new devotion of the Israelites - heretofore pastoralists themselves - to agriculture may have intensified their ideological hostility to other pastoral peoples even as they clung to their own pastoral traditions.

The Old Testament is replete with examples. Deuteronomy trumpets hatred and violence: "But thou shalt utterly destroy them - the Hittites, Amorites, Canaanites, Perizzites, Hivites and Jebusites - as the lord your God has commanded you" (20:17). Listing these same ethnic groups, the book of Exodus adds: "I will wipe them out" (23:23). Again in Deuteronomy we read: "[T]hou shalt smite them, and utterly destroy them; thou shalt make no covenant with them, nor shew mercy unto them. . . . Thou shalt consume all the people which the Lord thy God shall deliver thee; thine eye shall have no pity upon them" (7:2, 16).

Whatever this might reveal of actual biblical events, such extremism is neither limited to nor representative of Jewish texts, any more than the Qur'an's injunction to "slay the idolaters wherever you find them" (9:5) is representative of Islamic texts. Jews in particular have long been major victims of ethnic persecution and slaughter; during the second millennium, it was often professed Christians who appealed to violent biblical injunctions as precedents for the mass murder of other groups.

Ancient empires set their own genocidal precedents. The dispersal of the Jews began with Nebuchadnezzar's conquest of Jerusalem in 586 bce and the deportation of its inhabitants to Babylon. After Rome's destruction of Carthage in 146 bce, its annexation of Egypt in 6 ce excluded Alexandria's large Jewish community from the privileges accorded to citizens, and Jews suffered two expulsions from Rome itself. Indeed, "the first pogrom in Jewish history" shook Alexandria in 38 ce when Romans herded Jews into a ghetto as rioters burned synagogues and looted shops. Like other diaspora populations, Jews became increasingly vulnerable.

The six centuries since 1400 is the period historians term "the modern era". The main features of modern genocidal ideology emerged then, from combinations of religious or racial hatred with territorial expansionism and cults of antiquity and agriculture. When agrarian idealism shaded into anti-urban or monopolist thinking, genocide was occasionally associated with rising hostility to cities or commercial centers.

The technological imbalance of forces that made modern genocide feasible was rarer in the ancient and medieval worlds. Only from the 15th century, the dawn of the modern era, did advances in transportation and firepower frequently bring into collision societies separated by the requisite technology chasm. Genocide sometimes resulted - from the expansionism of Asian powers as well as in the new world. In both Europe and Asia, the early modern era also saw the rise of cults of antiquity and of agriculture, which strengthened emerging notions of racial superiority.

Genocides were nevertheless exceptional, emerging from specific social conditions and individual human decisions. However, if each was unique, and some were extreme, historical connections and consistent themes appeared. The long history of genocidal violence multiplying across the globe therefore has but one redeeming feature - but it is of inestimable importance.

Genocides by European perpetrators hold no monopoly on the crime. Rebelliious Indians in Peru and African slaves in Haiti, for instance, committed genocidal massacres of European settlers and planters. Elsewhere, mass killing occurred in the absence of colonialism. European conquest of most of the globe sprang from no inherently greater cultural propensity for violence. The roots of genocide lie elsewhere, if not everywhere.

Moreover, in the Judeo-Christian tradition, violent domination also provoked internal dissent. God told Saul: "Now go and smite Amalek, and utterly destroy all that they have, and spare them not; but slay both man and woman, infant and suckling, ox and sheep." The Israelites then "utterly destroyed all the people with the edge of the sword," but Saul spared Agag, king of Amalek, and his kingdom's best stock. When God found that Saul "hath not followed my commandments," Samuel "hewed Agag in pieces before the Lord." God punished Saul for refusing to "utterly destroy the sinners the Amalekites" by denying Saul's descendants the throne of Israel. Along with its genocidal injunction, this episode provided a biblical precedent for Jewish and Christian (and Islamic) dissent: the recalcitrant who would not complete a genocide paid a heavy price, yet not a mortal one. Demands for obedience and genocide recur in Judeo-Christian scripture, but so do models of dissent and non-violence.

The even darker 20th century, all continents produced perpetrators of genocide as well as dissenters. The technology, scale, and intensity of this violence were all new. At least 30 million people perished in genocides across the globe. Some were sudden or concentrated outbursts of mass murder, like those committed by the Young Turks in 1915, the Nazis in the second world war, the Khmer Rouge in 1975-79, or Rwanda's Hutu-power regime in just three months in 1994.

Other genocides were gradual and prolonged. In the Soviet Union, Stalin's regime of terror rose and fell incrementally, over nearly three decades, before and after his homicidal frenzy of the 1930s. Maoism, along with its Chinese and Japanese enemies, subjected China to intermittent cycles of deadly violence from the 1920s to the 1970s, peaking in a regime-made famine that killed tens of millions in the 1950s. Third-world populations suffered long and hard under smaller, but equally relentless, killer regimes like that of Kim Il-sung in North Korea, where repression and starvation escalated under his son, Kim Jong-il.

After a United States-sponsored coup ended a democratic era in Guatemala in 1954, murderous political repression plagued that country until 1996, persisting even after its intense genocidal phase of 1981-83. Extermination in East Timor began with the Indonesian invasion of 1975, reached its zenith in 1978-80, and continued sporadically until Jakarta's violent withdrawal in 1999. Mass killing in Sudan has gathered pace since 1982, with its Islamist regime taking 2 million victims by 2006, first Christians and animists, then black Muslims in Darfur.

After the cold war ended in 1989, new flashpoints emerged. Multinational communist regimes like the Soviet Union, Yugoslavia, and Czechoslovakia collapsed in ethnic division, as did their allies Afghanistan and Ethiopia. Armed territorial secession threatened other large multi-ethnic states like Indonesia and Congo. Following the 1994 genocide in Rwanda, ethnic violence spread to Burundi and to Congo, where a new genocide erupted. Ethnic-cleansing campaigns in the Caucasus and Chechnya cleared ground for new conflicts that seem to resist solution. Vicious al-Qaida terrorism targets civilians from Manhattan to Madrid, from Morocco to the Moro region of the Philippines. Muslim-Christian violence has erupted in Indonesia, Nigeria, Pakistan, and Iraq. Threats loom in rising anti-immigrant, nativist, and religious fundamentalist movements from western Europe to east Asia. A deepening divide in China, Islamic rebellions in southern Thailand and the Philippines, murderous insurgency and repression in Iraq, international and domestic crisis in North Korea, continuing ethnopolitical dissension in Afghanistan and suppression in Burma, and brutal national-religious conflicts in Kashmir and Sri Lanka all bode ill for 21st-century ethnic conciliation.

Countervailing trends offer grounds for hope but not complacency. The end of the colonial era and of the cold war, the spread of democracy and international law, and the rise of United Nations peacekeeping all reduced the number of interstate wars, internal coups, and crises. (Less reassuringly, mass flight reduced the death rate, too: the number of refugees and displaced people quadrupled from 10 to 40 million between 1970 and 1992.) According to the 2005 Human Security Report, even the number of genocides, after "nearly five decades of inexorable increase" became fewer in the late 1990s, when "more people were being killed in sub-Saharan Africa's wars than the rest of the world put together." Yet new conflicts have broken out since: "That the world is getting more peaceful is no consolation to people suffering in Darfur, Iraq, Colombia, Congo or Nepal." As genocide prevention has become more feasible, it remains urgent. It requires prediction of likely outbreaks, which in turn demands a prescient understanding of common features of genocide that often emerge early in the process. - an extract from Blood and Soil

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