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War Crimes during the Second World War

The whole conception of war crimes gained prominence after World War II when the victorious Allied powers together prosecuted and judged the principal surviving German war leaders at Nuremberg. The belief that there should be moral limits to permissible war practices is of ancient origin. Thucydides and Cicero spoke of laws of war, from which they inferred crimes of war.

For instance, the Athenians accused the Spartans of committing needless cruelties in war; Roman historians portrayed the invaders from the North as barbarians; and early Christian writers were convinced that Christian soldiers would wage wars with humanity. Preparation for the war crimes trials after World War II, resulted in elaborate specifications of what war crimes were believed to be. The charter of the Nuremberg international military tribunal, Article 6, defined war crimes as: “violations of the laws or customs of war.

Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity” (Falk et al, 1971:119).

In January 1942, some of the occupied nations joined in issuing the St. James Declaration, which proposed that those guilty of war crimes should be punished through some channel. Legal tradition at this time did not support such a plan. In the first place, only nations could be found guilty, and individual soldiers were protected under military rules when they were following superior orders. Furthermore, no nation could legally prosecute the citizens of another nation and no act could be considered a crime unless it was a crime in the country in question. Although The Hague conventions had named war crimes, they never specified punishment.

In addition, no universal agreement existed to support the thesis that The Hague established laws of war. This St. James Declaration was not supported by American traditions. The framers of the Nuremberg Charter were aware that their efforts would be conditioned by certain overriding national and military commitments, which included the established tradition that war making was a national right and that no rule should be invented that would ban war making whenever the hegemony of a state was at stake.

Armies had the right of reprisal and to appeal to military necessity whenever a rule might hinder military success. The matter of reprisal came up at the trials, and the courts had two options: they could deny that the victims of extermination had committed any prior crime for which they were being punished, or argue that the reprisals of the Germans were disproportionate to the supposed offense. Both options were explored.

In October 1943, the major Allies issued the Moscow Declaration, which made two principal points: (1) those Germans guilty of war crimes would be tried by the people and in the area where the crimes had been committed, and (2) those Germans whose crimes had no specific locale would be tried pursuant to a joint decision to be published later by the Allies (Evans, 1997). A UN War Crimes Commission was established in July 1943 to gather evidence of war crimes.

The primary focus of the commission was on the treatment of prisoners of war, atrocities against civilians, inhumane treatment in concentration camps, the execution of hostages, and the killing of noncombatants. In November and December 1943 the Soviets began to try and prosecute some Germans and their Russian accomplices as war criminals, and trials took place in Kiev and Kharkov. American and British news correspondents were invited to attend both the trials and the hangings that resulted. In the summer of 1944, the staff of General Dwight D.

Eisenhower at the Supreme Headquarters of the Allied Expeditionary Forces (SHAEF) prepared a Handbook for Military Government in Germany. This handbook proposed the automatic arrest and detention of about 250,000 high-ranking Nazis, and the mandatory arrest of all members of the Gestapo, the Sicherheitsdienst (SD), the higher members of the Sturmabteilung (SA), the Schutzstaffel (SS), and the regular army. Secretary of the Treasury Hans Morgenthau promoted his own plan, which proposed that the “major” criminals would be captured, identified, and summarily executed by a UN firing squad (Telford, 1970).

Lesser criminals would be given a trial. The Allies faced a number of questions. Could leaders of states be tried? At the end of World War I the British had said yes, and the Americans had said no. Now the positions were reversed. Viscount Simon feared that even to have a trial would be a propaganda weapon in favor of the Axis, so he proposed the offending Germans be considered as outlaws who could be shot on sight without trial. The Soviet Union agreed with the United States, and together they persuaded Great Britain to participate.

On August 8, 1945, an agreement was reached by the United States, Great Britain and Northern Ireland, France, and the USSR to hold two kinds of trials. The first trial type would be of the top leaders whose crimes had no specific locale and who could not plead superior orders. The second type of trial would prosecute those accused of crimes in a specific country, and the United States issued Control Council Law No. 10, which initiated a group of ten such trials. For the first trial at Nuremberg, the court would consist of four members and a vote of three was required for conviction.

A charter was prepared that listed the offenses. These were: (1) crimes against peace, (2) war crimes, and (3) crimes against humanity (Falk et al, 1971). With regard to crimes against peace, the tribunal charged that aggressive war was a crime. There was, however, no agreed-on definition of what such a war would be. Most nations accepted the strategy of first strike, and this eliminated the standard definition of who was the aggressor. Nations had long ago abandoned the requirement even to make a declaration of war, thus, even the Japanese attack on Pearl Harbor did not violate any clear law.

The German lawyers pointed out that no international rules defining aggression existed. The prosecution, for its part, argued that the Paris Pact of 1928 (Kellogg-Briand Peace Pact) outlawed war as a national policy and that it was binding on the sixty-eight nations that had signed it. But the pact never mentioned aggressive war, nor did it specify any punishments for violations. The tribunal added criteria to the offense that made it generally inapplicable to most purported offenders. Before one could be found guilty, he or she had to have actual knowledge that an aggressive war was intended and that if launched it would be aggressive.

In addition, the person with such knowledge must have been in a position to shape or influence the national policy. Although every defendant at the Tokyo trials was found guilty of this crime, only eight of the twenty-four at Nuremberg were. The idea that conspiracy was a crime found little support from books on international law. What was not in question was that the Nazis were being charged with planning and initiating wars against Poland, the United Kingdom, France, Denmark, Norway, Belgium, The Netherlands, Luxembourg, Yugoslavia, Greece, the USSR, and the United States.

Part of the claim that laws forbidding breaking the peace existed was the charge of the tribunal that Germany had a “common plan or conspiracy” to wage aggressive war. This plan was to commit war crimes, crimes against humanity, and crimes against the peace. The Nazi Party was named as the central agency that carried out this plan. The Nazis were accused of violating the Treaty of Versailles, which had set restrictions on German rearmament, of attempting to retake territories lost after World War I, and of acquiring further territory for lebensraum.

Nazis were charged with promulgating the doctrines of the Aryan master race, the “leadership principle” that put all power in the hands of the fuhrer, and that war was a noble activity (Falk et al, 1971). The Nazi party was charged, further, with having destroyed free trade unions, promoted beliefs incompatible with Christian teaching, persecuted pacifists, directed the economy to war making, planned to invade many neighboring countries, and collaborated with Japan and Italy for aggressive war.

The tribunal defined war crimes as acts of murder and ill-treatment of civilian populations of or in occupied territories and on the high seas and included shooting, hanging, gassing, starvation, overcrowding in camps, systematic undernourishing, the assigning of tasks beyond the physical ability of the workers, inadequate medical care, kicking, beating, applying hot irons, the performance of medical experiments on living human subjects, arrests and sentencing without trial, and deliberate attempts to annihilate groups by virtue of their racial, national, or religious background (Telford, 1970).

The charge included deportation for slave labor of civilians, murder and ill-treatment of prisoners of war, killing of hostages, pillage of private and public treasures, looting or destruction of works of art, wanton destruction of towns not justified by military necessity, exacting heavy collective penalties, the conscription of civilian labor, and the Germanization of occupied territories.

The judges concluded that the extermination camps were excessive, and that they served no viable military purpose. However, the courts did not consider whether some conventional weapons, such as flamethrowers, napalm, chemical and biological agents, and nuclear explosives were indiscriminately destructive. Crimes against humanity were affirmed by the tribunal to have been established by certain declarations of Geneva International Red Cross conventions.

The list of offenses was similar to that for war crimes but emphasized the civilian deaths in extermination camps. Legal criticisms of the trial process surfaced from the start and continued after the trials were over. Telford Taylor, who wrote the final report for the secretary of the army on the post-Nuremberg trials, was aware that there were serious problems (Telford, 1970). Were offenses against one’s own people war crimes or crimes against humanity? Were they offenses in international law?

Taylor saw the main contribution of this first trial to lie in its charter, but he remarked that the charter would set no precedent unless most nations supported the principles. Taylor noted that since war consisted of acts considered criminal if committed in times of peace, custom had established that soldiers had a “blanket of immunity” from any charges as long as they were obeying orders (Telford, 1970). The task of the court was to show that this immunity had limits.

Although scholars such as Quincy Wright thought that the procedure was a model for an international criminal tribunal, others, such as Hans Erhard, asserted that the Allies had invented the offenses after the fact. George Finch admitted that although it was accepted international law that a belligerent has the authority to try and punish individuals for crimes when they can catch them, that this is simply “victor’s justice” (Evans, 1997). Many believed that the trials violated military law that protected soldiers when they were obeying superior orders.

Some legalists, including some in the United States, challenged the legitimacy of the court’s dismissal of military necessity when the German lawyers appealed to it.


Falk Richard A. (1971). Gabriel Kolko, and Robert Jay Lifton, Crimes of War, New York: Random House Taylor Telford (1970). Nuremberg and Vietnam: An American Tragedy, New York: Time Books Martin Evans (1997). War and Memory in the Twentieth Century, Ken Lunn; Berg Publishers

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