Approximately 10,000 "War Crimes Trials" have been held since 1945. Trials of Japanese military personnel ended in 1949, yet "war crimes trials" of Germans and Eastern Europeans continue to date.
Almost invariably, the charge is "violation of the laws and customs of war", derived, in turn, from international conventions signed at the Hague in 1899 and 1907.
That these trials have little or no basis in law is clear from the wording of the treaties which are said to have been violated.
Let us take a typical example, the Hague Declaration (IV, 3) of 1899 on the Use of Expanding Bullets, dated July 29, 1899.
The Convention states,
"The Contracting Parties agree to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core, or is pierced with incisions.
"The present Declaration is only binding for the Contracting Powers in the case of a war between two or more of them.
"It shall cease to be binding from the time when, in a war between the contracting Powers, one of the belligerants is joined by a non-contracting Power".
The United States never ratified this convention, which, thus, never became "international law" in any war involving the United States. This was because American troops were busy using expanding bullets against Philipinos whom they had just "liberated" from the Spanish. American refusal to ratify this convention meant, not only that the United States was free to continue using expanding (or dum-dum) bullets legally in all wars, but from the moment the United States entered any conflict, all other belligerants were free to use them as well. (**)
This is called an "all-participation clause".
There are fourteen Hague Conventions, almost all of which contain similar clauses, and for this reason have had little or no application since 1907.
The Fifth Hague Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land of 18 October 1907, for example, states:
Art. 20: "The provisions of the present Convention do not apply except between Contracting Powers, and then only if all the belligerants are parties to the Convention".
This Convention was never ratified by Great Britain, and never applied after August 4, 1914.
Art. 1: "The territory of neutral Powers is inviolable".
Nevertheless, the British and Americans never tired of quoting this clause against the German and Japanese despite their own violation of the neutrality of Iceland, Greenland, Persia, Irak, Portuguese Timor, and the planned violation of Scandinavian neutrality.
The Third Hague Convention Respecting the Opening of Hostilities states, article 1, states:
"The contracting powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or an ultimatum with conditional declaration of war".
The problem here is that the "warning" may be as little as one minute, and no verbal formula is required. Poland received two ultimatums and was the first to mobilize. America received a formal declaration 25 minutes late, of which it had actual knowledge 10 days beforehand.
However, the basis of nearly all "war crimes trials" has been the Fourth Hague Convention Respecting the Laws and Customs of War on Land. In the words of Telford Taylor, Chief Counsel and Representative of the United States for the Prosecution of War Crimes at Nuremberg:
"An Annex to the Convention," consisting of 56 articles, sets forth various requirements and limitations with respect to the conduct of hostilities, the treatment of prisoners of war, and the exercise of authority over the occupied territory of a hostile state" (*).
This, then, is the Convention which the Germans and Japanese were alleged to have violated in 10,000 trials. What does the Convention say exactly?
Art. 2: "The provisions... of the present Convention do not apply except between contracting Powers, and then only if all the belligerants are parties to the Convention".
This condition has remained unfulfilled since August 1, 1914. Non-signatories during WWII included Italy, Greece, and the national states of Yugoslavia. Communist Russia repudiated all Czarist agreements and never made any pretence of obeying the Hague or Geneva Conventions.
Art. 3: "Belligerants violating the Convention may be made to pay compensation".
This is self-explanatory. No trials were contemplated.
THE ANNEX TO THE 4th HAGUE CONVENTION
The Annex to the Convention was the real basis for nearly all of these 10,000 trials. This is the Convention which defines "war crimes" and "war criminals"...
Articles 1 and 2 prohibit guerrilla warfare, stating that belligerants must be "commanded by a person responsible for his subordinates... have a fixed distinctive emblem recognizable at a distance... carry arms openly... and conduct their operations in accordance with the laws and customs of war".
Thus the European and Asian resistance movements were illegal.
Article 43 requires collaboration with occupation governments. "The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country".
The "collaborators" shot, hanged, or imprisoned after WWII were acting in compliance with international law.
Article 23 (3) prohibits weapons calculated to cause unnecessary suffering.
Napalm, phosphorous, jellied gasoline, etc. are illegal.
Articles 25, 27 and 56 prohibit bombardment "by whatever means" of undefended cities, cultural monuments, etc...
The fire bombings of Dresden and civilian areas of Hamburg, Tokyo, Hiroshima, Nagasaki, etc., were illegal.
Article 6 states that belligerants may utilize the labour of prisoners of war, officers excepted, for the public service, for private persons or their own account.
German and Japanese "slave policy" was perfectly legal insofar as it applied to members of resistance groups or lower ranking military personnel.
Article 8: "Prisoners of war are subject to the laws, regulations and orders in force of the State in whose power they are. Any act of insubordination justifies the adoption towards them of such measures of severity as may be considered necessary".
So much for the "mistreatment of prisoners" which formed the basis of so many war crimes trials.
Article 46: "Private property cannot be confiscated".
The post-WWII expulsions and confiscations were illegal. The provisions of the Versailles Treaty which confiscated the private property of all German citizens resident outside Germany, including missionaries on South sea islands, who were expelled and sent home penniless, were illegal.
Art. 5: "Prisoners... cannot be confined except as an indispensable measure of safety, and only while the circumstances which necessitate the measure continue to exist", and Art. 20: "After the conclusion of peace, the repatriation of prisoners shall be carried out as quickly as possible".
The prolonged detention of German and Japanese prisoners by the British, French, Russians and Americans for years after the war was illegal.
Art. 7: "Prisoners of war shall be treated as regards board, lodging, and clothing on the same footing as the troops of the Government who captured them".
The conditions of detention in "Eisenhower's death camps" were illegal whatever the death rate. (See Other Losses by James Bacque).
Art. 32: "A person is regarded as a parlementaire who has been authorized by one of the belligerants to enter into communications with the other... he has a right to inviolability".
The detention of Rudolph Hess was illegal.
Finally, article 23 (h) prohibits declaring "abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party".
If these treaties have any application at all (which is doubtful), the real war criminals were the Americans, the British, the French, and the Russians.
The illegalities of "war crimes" proceedings include the admissibility of oral and written hearsay, the introduction of the concept of "conspiracy" into international law (unknown prior to 1945), the total lack of any pre-trial inquest or forensic evidence, and trial before a court itself composed of actual "war criminals".
To return to the writings of Telford Taylor:
"The issues surrounding the war crimes trials are numerous and complex; discussion and criticism of what was done should be welcomed by all who hope for a continuing development of international law... but what should have been done instead is a problem generally ignored by those who condemn what was done in fact" (*)
The alternative is a fair trial before an impartial court under existing procedures and proper rules of evidence.
(*) "The Legality of the Trials", in "Trials at Nuremberg", History of the Second World War, Volume 8, No. 7 3/6, Purnell & Sons, 1969.
(**) Dum dum bullets, first manufactured by the British at Dum Dum, India, are of advantage only in jungle warfare against primitive tribes, where the danger is of sudden rushes of large numbers at close quarters. They are not used in European warfare because they are inaccurate and tend to foul guns. If they offered an advantage, they would be used regardless of any treaty.