War Crimes

War crimes were violations of the laws and customs of war. These laws and customs derived from the Roman doctrine of just war, which was Christianized by Augustine of Hippo, elaborated by Thomas Aquinas, and codified by the Geneva and Hague Conventions. This doctrine regarded lawful belligerency as the use of violence by one government against another as a remedy for a claimed grave injustice. The laws and customs of war sought to distinguish war from other forms of violence by defining lawful combatants and noncombatants; by prohibiting the use of military force against lawful noncombatants; and by providing rules for initiating and terminating hostilities.

The laws and customs of war protected civilians by forbidding looting, unjustified violence against the persons of civilians, attacks on undefended cities, and wanton destruction not justified by military necessity; and by requiring occupation forces to try civilians accused of crimes before a duly constituted military tribunal. Unlawful combatants, defined as persons who engaged in warlike activities while not part of a lawful chain of command or while not wearing a distinctive insignia visible from a distance, were regarded as bandits and had little protection under the laws and customs of war. Combatants could not be refused quarter (the opportunity to surrender) and enjoyed certain protections as prisoners of war. Perfidy (feigning negotiations under a flag of truce, feigning surrender, or feigning wounds in order to take an enemy by surprise) was also prohibited.

The laws and customs of war did not address the question of whether the war itself was justified, and they were not generally considered applicable to the conduct of a government towards persons living within its own territorial boundaries. In the face of massive evidence of evils committed by the Axis that were not covered by the laws and customs of war, the Allies developed a legal doctrine of crimes against the peace and crimes against humanity. Crimes against the peace were defined as the launching of wars of aggression or wars in violation of international agreements. Crimes against humanity were defined as the persecution of or the committing of atrocities against large groups of persons. The creation of these new categories of international crimes seemed justified in light of Axis conduct, but they were and are controversial, since they imposed new restrictions on national sovereignty and posed difficult definitional questions.

Although war crimes are still narrowly defined as violations of the laws and customs of war, the term "war crimes" has come to be broadly applied to crimes against the peace and crimes against humanity as well.

War Crimes Trials. The Allies announced as early as 13 January 1942 that Axis war criminals would be punished after the war. The victorious powers convened war crimes tribunals in both the European and Pacific theaters to try Axis leaders and soldiers. The jurisdiction of these military tribunals depended on the nature and scope of the crimes alleged. Those accused of being responsible for general policies of a criminal nature (generally the highest government leaders) were designated as Class A defendants and were tried by international tribunals, either in Tokyo or Nuremberg. Those accused of local crimes were tried by military tribunals at the location where the alleged crimes took place.

The war crimes trials were controversial from the start, since they appeared to some to be an exercise in “victor’s justice.” The tribunals consisted of officers of the aggrieved nations, which created an appearance of partiality. There were also numerous legal and procedural objections to the proceedings. In particular, few of those put on trial had broken any law of their own nations, which meant the trials violated national sovereignty. Trial for crimes against the peace and crimes against humanity appeared to violate the prohibition of ex post facto law.

However, the Nuremberg trials brought to light massive evidence of the awful nature of the Nazi regime in Germany. That three of the accused in the trial of major war criminals were nonetheless acquitted, and others sentenced to imprisonment for as little as ten years, suggests that the trials were not “kangaroo courts” but were an honest attempt at justice. Perhaps the Nuremberg proceedings are best regarded as an exercise in natural law. Murder is not a crime because the law makes it so; it is a crime because it shocks the conscience. The same could be said, millions of times over, of the acts of those convicted in Nuremberg.

The Tokyo war crimes trials were a sharp contrast with the Nuremberg proceedings. Whereas the Nuremberg convictions were supported by masses of documentary evidence, the Japanese destroyed most of their records at the time of their surrender. The Nuremberg prosecutors included in their ranks some of the most brilliant legal minds of their generation, who were careful to establish the individual responsibility of each defendant for the acts with which he was charged. The Tokyo chief prosecutor, a political appointee largely unqualified for the responsibility given him, showed up in court drunk on more than one occasion, and a case can be made that many of the major war criminals were convicted for the acts of subordinates, such as Tsuji Masanobu — or for the decisions of the Emperor.

Unlike Germany, which was being overrun at the time of her surrender, and whose surrender was truly unconditionally, Japan was not occupied until some time after agreeing to surrender, and the surrender was not unconditional. The guarantees given by the Allies regarding the Emperor were an expediency without which the Japanese military might never have been persuaded to submit, but they also led to a situation in which the Tokyo war crimes trials were fatally flawed from the start. It was impossible to conduct a just and thorough examination of Japanese leaders as long as the Imperial Family was off-limits.

These criticisms of the Tokyo trials should not be mistaken for arguments that the Japanese were less guilty of war crimes than the Germans. There is clear and convincing evidence of a shocking pattern of atrocities by the Japanese military throughout the Pacific War, as well as during the Sino-Japanese War that preceded it. The concern here is with the carelessness with which guilt was assigned and punishment inflicted.

Another objection to both sets of war crimes trials was that, even if the punishments handed out were just, punishment was handed out exclusively to Axis defendants. It has been argued, for example, that Curtis LeMay should have stood trial for the fire bombing of Japanese cities. Politically, this was impossible, but it was equally impossible not to act against Axis leaders. The situation was further muddied by the argument that the Allies engaged in area bombing of cities and unrestricted submarine warfare in retaliation for similar practices by the Axis. When a legal or moral barrier was breached by the Axis in a way that appeared to give a military advantage, the Allies often adopted an "if that's how you want to play the game ..." attitude.

Perhaps the bottom line is this: The Axis began an unprovoked and brutal war of aggression, leading to untold horrors for a generation of the human race, against an Allied coalition that had clearly demonstrated a great reluctance to take up arms. That may be the ultimate best justification for the war crimes tribunals.