I.

Introduction

War Crimes Trials, trials of persons charged with criminal violation of the laws and customs of war and related principles of international law.

The first war crimes trials in modern times were held after World War II (1939-1945) by the victorious Allied nations to prosecute German and Japanese war criminals. In 1993 and 1994 the United Nations (UN) established war crimes tribunals to prosecute those who committed crimes during the civil wars in the former Yugoslavia and in Rwanda. In 2002 the UN and the government of Sierra Leone established a jointly administered war crimes tribunal to prosecute atrocities committed during Sierra Leone’s civil war. A similar court has been proposed to prosecute war crimes committed in Cambodia during the 1970s.

In July 1998 UN delegates approved a statute creating a permanent International Criminal Court (ICC) to try people accused of genocide (systematic extermination of a group), war crimes, crimes against humanity, and crimes of aggression. The ICC was designed to replace ad hoc tribunals of limited jurisdiction, such as those created to address the conflicts in the former Yugoslavia and in Rwanda. The ICC, with headquarters in The Hague, The Netherlands, officially came into being on July 1, 2002.

This article discusses war crimes tribunals with jurisdiction limited to specific conflicts. For information on the permanent International Criminal Court, see International Criminal Court.

II.

Nürnberg Trials

The most important war crimes trials following World War II were held in Nürnberg, Germany, under the authority of two legal instruments. One, the so-called London Agreement, was signed by representatives of the United States, the United Kingdom, France, and the Union of Soviet Socialist Republics (USSR) in London on August 8, 1945; the other, Law No. 10, was issued by the Allied Control Council in Berlin on December 20, 1945.

The London Agreement provided for the establishment of the International Military Tribunal, composed of one judge and one alternate judge from each of the signatory nations, to try war criminals. Under the London Agreement, the crimes charged against defendants fell into three general categories: (1) crimes against peace—that is, crimes involving the planning, initiating, and waging of aggressive war; (2) war crimes—that is, violations of the laws and customs of war as embodied in the conventions adopted at the Hague Conferences (international peace conferences of 1899 and 1904); and (3) crimes against humanity, such as the extermination of racial, ethnic, and religious groups and other large-scale atrocities against civilians.

On October 18, 1945, the chief prosecutors lodged an indictment with the tribunal charging 24 individuals with a variety of crimes and atrocities, including the deliberate instigation of aggressive wars, extermination of racial and religious groups, murder and mistreatment of prisoners of war, and the murder, mistreatment, and deportation to slave labor of hundreds of thousands of inhabitants of countries occupied by Germany during the war.

Among the accused were Nationalist Socialist leaders Hermann Göring and Rudolf Hess, diplomat Joachim von Ribbentrop, munitions maker Gustav Krupp von Bohlen und Halbach, Field Marshal Wilhelm Keitel, Grand Admiral Erich Raeder, and 18 other military leaders and civilian officials. Seven organizations that formed part of the basic structure of the Nazi government were also charged as criminal. These organizations included the SS (Schutzstaffel, German for “Defense Corps”), the Gestapo (Geheime Staatspolizei, “Secret State Police”), the SA (Sturmabteilung, “Storm Troops”), and the General Staff and High Command of the German armed forces.

The trial began on November 20, 1945. Much of the evidence submitted by the prosecution consisted of original military, diplomatic, and other government documents that fell into the hands of the Allied forces after the collapse of the German government.

A.

Conclusions of the First Trial

The judgment of the International Military Tribunal was handed down on September 30-October 1, 1946. Among notable features of the decision was the conclusion, in accordance with the London Agreement, that to plan or instigate an aggressive war is a crime under the principles of international law. The tribunal rejected the contention of the defense that such acts had not previously been defined as crimes under international law and that therefore the condemnation of the defendants would violate the principle of justice prohibiting ex post facto punishments. It also rejected the contention of a number of the defendants that they were not legally responsible for their acts because they performed the acts under the orders of superior authority. According to the tribunal, “the true test … is not the existence of the order but whether moral choice (in executing it) was in fact possible.”

With respect to war crimes and crimes against humanity, the tribunal found overwhelming evidence of a systematic rule of violence, brutality, and terrorism by the German government in the territories occupied by its forces. Millions of persons were destroyed in concentration camps, many of which were equipped with gas chambers for the extermination of Jews, Roma (Gypsies), and members of other ethnic or religious groups. Under the slave-labor policy of the German government, at least 5 million persons had been forcibly deported from their homes to Germany. Many of them died because of inhuman treatment. The tribunal also found that atrocities had been committed on a large scale and as a matter of official policy.

Of the seven indicted organizations, the tribunal declared criminal the Leadership Corps of the National Socialist Party, the SS, the SD (Sicherheitsdienst, German for “Security Service”), and the Gestapo.

Twelve defendants were sentenced to death by hanging, seven received prison terms ranging from ten years to life, and three, including the German politician and diplomat Franz von Papen and the president of the German Central Bank Hjalmar Horace Greeley Schacht, were acquitted. Those who had been condemned to death were executed on October 16, 1946. Göring committed suicide in prison a few hours before he was to be executed.

B.

Subsequent Trials

After the conclusion of the first Nürnberg trial, 12 more trials were held under the authority of Control Council Law No. 10, which closely resembled the London Agreement but provided for war crimes trials in each of the four zones of occupied Germany.

About 185 individuals were indicted in the 12 cases. Those indicted included doctors who had conducted medical experiments on concentration camp inmates and prisoners of war, judges who had committed murder and other crimes under the guise of the judicial process, and industrialists who had participated in the looting of occupied countries and in the forced-labor program. Other persons indicted included SS officials who had headed the concentration camps, administered the Nazi racial laws, and carried out the extermination of Jews and other groups in the eastern territories overrun by the German army; and high military and civilian officials who bore responsibility for these and other criminal acts and policies of the Third Reich. A number of doctors and SS leaders were condemned to death by hanging, and approximately 120 other defendants were given prison sentences of various durations. The tribunals acquitted 35 defendants.

III.

Other World War II Trials

Another war crimes trial was held under international authority in Tokyo. The International Military Tribunal for the Far East was constituted under the authority of a charter promulgated on January 19, 1946, by General Douglas MacArthur, supreme commander for the Allied Powers. Many provisions of the charter were adapted from those of the London Agreement.

The Tokyo trial opened on May 3, 1946, and held its final session on November 12, 1948. The conclusions reached by the 11-nation tribunal were generally parallel to those embodied in the judgment given in Nürnberg. Of the 28 defendants named in the indictment, seven were condemned to death by hanging, and all but two of the others were sentenced to life imprisonment. The trial of Japanese general Yamashita Tomoyuki was important in establishing the principle of “command responsibility”—the duty of a military or civilian commander to prevent military personnel from committing war crimes and crimes against humanity. This principle resurfaced more than 50 years later in the trial of former Yugoslav president Slobodan Milošević.

Many other trials of alleged war criminals were held by tribunals constituted by the governments of the countries that had been occupied in whole or in part by Germany or Japan during World War II. In addition, military tribunals in the British and American zones of occupation in Germany tried Germans under the laws of war. Numerous trials of Japanese military officers were held also in the Philippines and Australia and by American military courts on Japanese territory. For the most part, these trials were based on alleged violations of the laws and customs of war, and did not involve the crimes against peace and crimes against humanity that had constituted an important part of the Nürnberg proceedings.

Alleged World War II criminals were brought to trial under national laws long after the end of the war. In 1960 the Nazi official Adolf Eichmann, who had been a member of the German SS and an organizer of anti-Semitic activities, was captured as a war criminal in Argentina by Israeli agents (see Anti-Semitism). Taken to Jerusalem, he was tried and condemned the following year and executed in 1962. In 1987 a French court convicted Klaus Barbie, a notorious German Gestapo officer, of crimes against humanity and sentenced him to life imprisonment. Other trials of French collaborators with Nazi Germany followed in the 1990s. In 1999 Polish-born former police officer Anthony Sawoniuk was convicted under the British War Crimes Act of 1991 of murdering Jews in Nazi-occupied Domachëvo, now in Belarus, during World War II. Sawoniuk was sentenced to life in prison.

IV.

Tribunal for the Former Yugoslavia

The United Nations established the International Criminal Tribunal for the Former Yugoslavia (ICTY) in May 1993 to prosecute individuals responsible for war crimes, crimes against humanity, and genocide committed in the territory of the former Yugoslavia. Originally set up to prosecute crimes resulting from the wars of Yugoslav succession (1991-1995), the tribunal also has addressed crimes occurring in the late 1990s as the result of a separatist movement in Kosovo, a province in southwestern Serbia. The tribunal convenes at The Hague, Netherlands. It consists of 14 judges from different nations and has the power to impose a maximum sentence of life imprisonment.

War in the former Yugoslavia began in July 1991 after Slovenia and Croatia—two of six republics in the country—declared their independence. Other republics followed, touching off a conflict that lasted for more than four years. During the war, between 100,000 and 250,000 people were killed and an estimated 200,000 were wounded. Evidence surfaced that many were the victims of ethnic cleansing—efforts to remove all members of a particular ethnic group from territories occupied by other ethnic groups. Thousands of people were found in mass graves near Srebrenica, a town in eastern Bosnia and Herzegovina; Vukovar, a city in eastern Croatia; Prijedor, a city in northwestern Bosnia and Herzegovina; and Sarajevo, the capital of Bosnia and Herzegovina. There was also evidence of rape and other atrocities.

The separatist movement in Kosovo began in 1991 when ethnic Albanians, who made up more than 90 percent of the province’s population, started to agitate for secession from Serbia. In 1992 Serbia and Montenegro proclaimed themselves the successor state to the former Yugoslavia and took the name Federal Republic of Yugoslavia (FRY). In 1996 a militant separatist group known as the Kosovo Liberation Army (KLA) began attacks on Serbian police forces in an attempt to gain independence. In early 1998 the Serbs, with the help of FRY army units, began a major crackdown on the separatists. In March 1999, after settlement negotiations proved unsuccessful, members of the North Atlantic Treaty Organization (NATO) began a campaign of air strikes on the Federal Republic of Yugoslavia. Hundreds of thousands of ethnic Albanians were displaced from Kosovo and many refugees reported mass killings and other atrocities.

Among the many individuals indicted by the ICTY have been several high-ranking members of the Bosnian Serb leadership, including Radovan Karadžić, former president of the Bosnian Serb Republic, and Serbian army general Ratko Mladic. However, the work of the tribunal has been hampered by lack of cooperation from most of the governments in the region where the conflicts occurred, making it difficult for the tribunal to apprehend the people it indicted. The first trial of the tribunal opened in May 1996. In 1998 the tribunal became the first international court to find an individual accountable for rape as a war crime.

In mid-1999 the tribunal set another first by indicting an active head of state, President Slobodan Milošević of the FRY. The tribunal charged Milošević and four other top Serbian or Yugoslav officials with war crimes and crimes against humanity based on alleged atrocities in Kosovo. Specifically, the indictment charged the five individuals with conducting a “campaign of terror and violence directed at Kosovo Albanian civilians.” In 2001 the Serbian government, responding to international pressure, extradited Milošević to the war crimes tribunal, despite a ruling by the Yugoslav Constitutional Court to stop his handover.

Later that year the tribunal found a former Bosnian Serb regional commander, General Radislav Krstic, guilty of genocide for his role in the massacre of thousands of Bosniak (Bosnian Muslim) men and boys in Srebrenica in 1995. The conviction was the first time the tribunal established that genocide was committed during the war in Bosnia and Herzegovina. An appeals chamber of the tribunal overruled that verdict in 2004, changing Krstic’s conviction to “aiding and abetting genocide.” The 2004 ruling also established beyond doubt that the massacre at Srebrenica was an act of genocide, conclusively laying to rest all claims that no genocide had occurred in Bosnia.

In 2001 the tribunal also convicted three former Bosnian Serb soldiers of systematically raping and torturing Bosniak women and girls, the first time individuals were convicted of rape as a crime against humanity. The court found that Bosnian Serb soldiers used rape as “an instrument of terror” and convicted two of the men of enslavement for forcibly detaining women and girls as sex slaves and loaning or selling them to others for sexual abuse. The trial established sexual enslavement as a war crime.

In late 2001 the tribunal charged Milošević with additional war crimes for his role in the forcible removal of the majority of non-Serbs from parts of Croatia in 1991 and 1992 and from large areas of Bosnia and Herzegovina from 1992 to 1995. He also faced a charge of genocide in connection with the killing or inhumane confinement of thousands of Bosniaks, Bosnian Croats, and other non-Serb civilians during the war in Bosnia and Herzegovina. Milošević’s trial before the tribunal began in February 2002 but was repeatedly delayed because of his poor health. Milošević died in March 2006 before the trial could be completed.

V.

Rwanda Tribunal

In November 1994 the Security Council of the United Nations adopted Resolution 955 creating the International Criminal Tribunal for Rwanda. The tribunal was authorized to prosecute individuals responsible for genocide and other serious violations of humanitarian law during the 1994 civil war in Rwanda. Another express purpose of the tribunal is to encourage the process of national reconciliation in Rwanda and the maintenance of peace in the region. The tribunal convenes in Arusha, Tanzania, and consists of nine trial judges from different nations, elected by the UN General Assembly. The tribunal shares appellate judges with the International Criminal Tribunal for the former Yugoslavia. The Rwanda tribunal has had problems apprehending suspects, and has been hampered by administrative and financial problems.

The civil war in Rwanda began in 1994, after the death of Rwandan president Juvénal Habyarimana sparked fighting between the nation’s two chief ethnic groups, the Hutu and Tutsi. Habyarimana was a Hutu. An estimated 500,000 to 1 million people, mostly Tutsi, were killed during the war. The Hutu-dominated Rwandan army was accused of genocide against the Tutsi.

The first trial started in October 1996. In May 1998 former Rwandan prime minister Jean Kambanda pleaded guilty to multiple charges of genocide and crimes against humanity and was sentenced to life imprisonment. Jean-Paul Akayesu, who was tried and found guilty of genocide and crimes against humanity, was also sentenced to life imprisonment. Another man, Omar Serushago, was sentenced to 15 years in prison for similar crimes. These convictions marked the first instances of an international court finding individuals guilty of the crime of genocide.

VI.

Sierra Leone Tribunal

In 2002 the UN and the Sierra Leone government jointly established a war crimes tribunal, the Special Court for Sierra Leone, to try individuals who had committed atrocities during Sierra Leone’s civil war, which lasted from 1991 to 2000. Unlike the tribunals for the former Yugoslavia and Rwanda, which are administered by the UN and composed of UN-appointed judges and prosecutors, the Special Court is jointly administered by the UN and the Sierra Leone government and contains a mix of Sierra Leonean and international judges. The court has jurisdiction over serious violations of international humanitarian law and certain Sierra Leonean criminal laws. To avoid placing an undue burden on the court, its jurisdiction is limited to crimes committed since November 30, 1996.

Sierra Leone’s civil war began in 1991 when a rebel group, the Revolutionary United Front (RUF), launched a violent campaign against the government. Tens of thousands of people were killed in the ensuing war, in which rebel forces terrorized the country by raping and mutilating thousands of civilians, often hacking off their limbs. Rebels also abducted children and forced them into combat. The RUF was reportedly supported by the government of Charles Taylor in neighboring Liberia. The civil war ended in 2000.

In 2003 the Special Court issued its first indictments. The court charged seven people, including rebel leader Foday Sankoh and Internal Affairs Minister Sam Hinga Norman, with murder, rape, extermination, sexual slavery, conscription of children into an armed force, and other crimes. Sankoh died in July 2003 while in UN custody. The same year Taylor lost power in Liberia and went into exile in Nigeria. In 2006 Nigeria deported Taylor to The Hague to face charges before the Special Court. The charges included murder, sexual violence, using children as soldiers, enslavement, and terrorizing the civilian population of Sierra Leone. The prosecution alleged that Taylor had supplied the RUF with training, money, arms, and ammunition with the goal of sharing power over Sierra Leone and gaining access to its diamond trade. Taylor’s trial began in June 2007, but he refused to attend the proceedings.

VII.

Effects

The Nürnberg and other war crimes trials were a notable step in the evolution of international penal law. The standing of the trials suffered sharply, however, because the proceedings were carried out under auspices of victorious powers and the charges were brought only against the nationals of vanquished Germany and Japan. Nevertheless, the principles applied in the Nürnberg and Tokyo trials helped to strengthen international law and the judicial mechanisms for its enforcement. Also, the United Nations has ratified the general principles of the trials.

The use of international war crimes tribunals in the former Yugoslavia, in Rwanda, and in Sierra Leone extends the principles that were the basis of the other war crimes trials to the treatment of civilians in conflicts involving only one nation. Recent war crimes trials have also established the principle that even the victors in a violent conflict are subject to criminal prosecution.