War Crimes and Genocide in History, and the Evolution of Responsive International Law

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Notes

Sun-tzu's Art of War, 160; Sun Tzu, The Art of War, 46–47. This translation states that it is important to be sure that [captured] “soldiers are treated kindly when given care; this is conquest for aggrandizement.”

Bodde, China's First Unifier, 5–9; Cottrell, The First Emperor of China, 141–45. This view of Qin Shihuangdi as a brutal emperor was perpetrated by Confucian scholars. Some contemporary Chinese scholars take a more balanced view of Qin. According to the Basic Annals of Ch'in Shih-Huang, at the end of his military campaigns, “all weapons were collected and brought to the capital Hsienyang, where they were melted down to make bronze bells and twelve statues of giants, and placed in the courts and palaces.” Ch'ien, “Basic Annals,” 269–70.

Lee, “Early Development of Modern International Law in East Asia,” 42.

Cryer, Prosecuting International Crimes, 25–31.

Anand, “Universality of International Law,” 23, 38.

Tanakh, 591.

Telushkin, Biblical Literacy, 165.

According to Charles E. Little, the origins of this phrase can be traced to a number of Roman writers who, over time, included it in the historic canon about the Punic Wars. Little, “The Authenticity and Form of Cato's Saying ‘Carthago delenda Est,’” 429–35; see also Dubuisson, “‘Delendo Est Carthago,’”, 279–87.

Rawlings, “Hannibal the Cannibal?,” 2–3.

Craven, The Punic Wars, 285.

New Complete Works of Josephus, 930, 933; Shayne Cohen questions some parts of Josephus' story about the mass suicide of the Jews there. Cohen, “Masada,” 385–405.

Esposito, Islam, 12.

Ibid., 5–11, 40–48, 51–57.

Carey et al., Warfare in the Medieval World, 31–39.

Smith, “Islam and Christendom,” 337–41; Durant, The Age of Faith, 585–613.

Nicolle, Crusader Warfare, 42, 49.

Santosuosso, Barbarians, Marauders, and Infidels, 224.

Ibid., 75.

Ibid., 64–65, 78.

Smith, “Islam and Christendom,” 325.

Ibid., 325–26.

Esposito, Islam, 59.

Santosuosso, Barbarian, Marauders, and Infidels, 224.

Aboul-Enein and Zuhur, Islamic Rulings on Warfare, 22.

Kelsay, “Al-Shaybani and the Islamic Law of War,” 68.

Rehman, “The Concept of Jihad,” 329.

O'Donnell, Augustine, 259.

Aquinas, Summa Theologica, 1359–62; for more on Aquinas' work, see Torrell, Saint Thomas Aquinas.

Die Constitutio Criminalis Carolina, 2–3; Monter, “Witch Trials,” 34; Ankarloo, “Witch Trials,” 65.

Marius, Martin Luther, 267; Luther's concept of the “priesthood of the individual believer” can be found in his Luther, Von der Freiheit eines Christenmenschen. The paradox can be found early in Luther's essay when he states that “a Christian man is the most free lord of all, and subject to none, a Christian man is the most dutiful servant of all, and subject to every one.”

Wedgwood, Thirty Years War, 491.

Mortimer, Eyewitness Accounts—see, for example, 1–2. He raises questions about the lingering idea that this was not only the most devastating war in German history prior to World War I but one filled with acts of “rapine and plunder.” He traces this myth to early nineteenth-century German Romantic historians and novelists.

Roberts, Gustavus Adolphus, 240–43; American military legal scholars offer different opinions about the importance of Gustav II's Articles of War. Winthrop, Military Law and Precedents, the “‘Blackstone’ of military law,” credits Gustav's Articles with forming the basis of modern military law and lists all 167 articles in the Appendix of his classic (907–17). Lieutenant Colonel William R. Hagan, who wrote the introduction to the above reprint of Winthrop's study, will have none of this. He concludes “that Gustavus Adolphus was an important, but not a revolutionary figure in the development of military law” (200); what adds to this controversy are the different versions of Gustav's laws of war. Winthrop listed 167 articles in his study, while Kenneth Ögren states that the Articles of War had 150 articles. He says that seven dealt with humanitarian issues, but then specifically cites six in his article. The difference seems to center on a revised set of the Articles issued by Gustav just before his death in 1632. The new Articles had clauses that tried to strengthen discipline in his army.” Ögren, “Humanitarian Law in the Articles of War.”

Grotius, Rights of War and Peace, 1021.

Meron, War Crimes Law, 124.

Roberts, Gustavus Adolphus, 423, 639.

Locke, Essay Concerning Human Understanding, 11–12, 30–32, 39.

Locke, Two Treatises, 101, 166, 172.

Ibid., 224, 249.

“Declaration of the Rights of Man,” 1–2.

Bass, Stay the Hand of Vengeance, 49–50.

Bell, First Total War, 7.

Bass, Stay the Hand of Vengeance, 37, 56–57.

Thornton, American Indian Holocaust, 22.

Churchill, Indians Are Us?, 38; Stannard, American Holocaust, 146.

De las Casas, Short Account of the Destruction of the Indies, xx.

Ibid., 29.

Ignatieff, “Legacy of Raphael Lemkin,” 9.

Oswalt and Neely, This Land was Theirs, 4.

Thornton, American Indian Holocaust, 43–44.

Ibid., 47, 49.

Beeching, Chinese Opium Wars, 199–200, 286–87, 305–06; Fairbank, Great Chinese Revolution, 81. For Taiping regulations on the conduct of its armies, see Spence, God's Chinese Son, 147–48, 165–68.

Hsü, Rise of Modern China, 373–80, 387–406; Spence, Search for Modern China, 230–35.

Esherick, Origins of the Boxer Rebellion, 123–24; Schrecker, Imperialism and Chinese Nationalism, 91, 130–39; Yi Ho Tuan Movement, 1–14 passim; MacDonough, Last Kaiser, 234–35.

Brandt, Massacre in Shansi, 223–33; Purcell, Boxer Uprising, 240–62.

Edgerton, Warriors of the Rising Sun, 323.

Ibid., 324.

Ward, Our Bones are Scattered, 428–29.

Ibid., 437.

Ibid., 442.

Laband, Kingdom in Crisis, 87.

Ibid., 88.

Ibid., 107–08.

Cope, Ploughshares of War, 250.

Hochschild, King Leopold's Ghost, 225, 233.

Conrad, Heart of Darkness, 89.

Ó Siocháin and O'Sullivan, The Eyes of Another Race, 1, 28–32. This volume contains not only Casement's full official report but also his 1903 diary detailing his research travels in the Congo; Hochschild, King Leopold's Ghost, 250–59.

Stern, Gold and Iron, 411.

Pakenham, Scramble for Africa, 608–09.

Ibid., 609–10.

Ibid., 615.

Ibid., 611.

Ibid., 615.

Hull, Absolute Destruction, 332–33.

Pakenham, Scramble for Africa, 284–85.

Gay, Cultivation of Hatred, 85–86.

Ibid., 87.

Hull, Absolute Destruction, 332.

Laws of War: General Orders No. 100, 12–13.

Friedel, Francis Lieber, 331–35; Meron, War Crimes Law Comes of Age, 132; Krammer, Prisoners of War, 88.

Meron, Humanization of International Law, 5.

Laws of War: General Orders No. 100, 9; Meron, War Crimes Law Comes of Age, 133.

Burlingame, Abraham Lincoln, 540–41.

Report of Charles S.P. Bowles, 6–8.

Benvenisti, “The Origins of the Concept of Belligerent Occupation,” 641.

Hertigan, Lieber's Code, 23; Friedel, Francis Lieber, 340; Meron, War Crimes Law Comes of Age, 138–39.

Laws of War: Laws and Customs of War on Land (Hague II), 2–3. The wording of the Martens Clause was slightly changed in the 1907 Hague Convention on the Laws and Customs of War on Land. The final phrase now read “and the dictates of the public conscience.” Laws of War: Laws and Customs of War on Land (Hague IV), 2.

Kramer, Dynamic of Destruction, 5.

Hankel, Die Leipziger Prozesse, 15; Kramer, “The First Wave of International War Crimes Trials,” 447.

Treaty of Versailles, Part VIII, Articles 227–30, Part VIII, Article 231.

Horne and Kramer, German Atrocities, 74–76.

Kramer, “The First Wave of International War Crimes Trials,” 448–49.

Hankel, Die Leipziger Prozesse, 507–17; Horne and Kramer, German Atrocities, 351; Matthaüs, “The Lessons of Leipzig,” 19–20.

Akçam, A Shameful Act, 125–29.

Lewy, The Armenian Massacres, 20–26; “Another Armenian Holocaust,” 1.

Bloxham, The Great Game of Genocide, 51, 60.

Akçam, A Shameful Act, 159; Dadrian, History of the Armenian Genocide, 221.

Balakian, The Burning Tigris, 182–83.

Theriault, “Rethinking Dehumanization in Genocide,” 28–31.

Akçam, A Shameful Act, 214; Balakian, The Burning Tigris, 278; Payaslian, United States Policy toward the Armenian Question, 89–95.

The Treaty of Peace between the Allied and Associated Powers and Turkey Signed at Sèvres, Part III, Articles 88–93.

Suny, Looking toward Ararat, 122–32, 239–46; Kurkjian, History of Armenia, 474–88; Herzig, “Armenians,” 147–49; Dudwick, “Armenia,” 265–66, 275–80; Shaw, History of the Ottoman Empire, II, 356–57; Treaty of Kars, 1–14.

Dadrian, History of the Armenian Genocide, 304–05.

The Treaty of Peace at Sèvres, Part IV, Article 144, and Part VII, Articles 226–30.

Dadrian, History of the Armenian Genocide, 310–11.

Ibid., 311.

Taylor, Anatomy of the Nuremberg Trials, 18.

Covenant of the League of Nations.

Shaw, International Law, 848.

Conquest, Harvest of Sorrow, 4.

Khrushchev, Khrushchev Remembers, 74.

Wolowyna, “Famine-Genocide,” 5.

Krawchenko, Social Change and National Consciousness, 116; Conquest, Harvest of Sorrow, 306.

Subtelny, Ukraine, 413.

Liber, “Ukraine,” 12.

Documents on the Tokyo International Military Tribunal, 537.

Chang, Rape of Nanjing, 4; Li, “Nanjing Holocaust,” 231. The Japanese claim that there were only 38,000–42,000 “illegal murders” by their forces in Nanjing.

Rummel, China's Bloody Century, 149.

Tanaka, Hidden Horrors, 79–109; Rummel, China's Bloody Century, 166, n. 71.

Osmanczyk and Mango, Encyclopedia of the United Nations, 4, 2663.

Kochavi, Prelude to Nuremberg, 45–54; Harris, Tyranny on Trial, 4.

Office of United States Chief Counsel, Nazi Conspiracy and Aggression, 5.

Taylor, Anatomy of the Nuremberg Trials, 45.

Nazi Conspiracy and Aggression, 114.

Crowe, The Holocaust, 399.

Ibid., 399.

Ibid., 401–02.

Nuremberg Trials Final Report Appendix D, 3.

Crowe, The Holocaust, 402.

Boister and Cryer, Tokyo International Military Tribunal, 22–32.

Ibid., 54–59, 252.

Justice Pal's full dissenting opinion can be found in Boister and Cryer, Documents on the Tokyo International Military Tribunal, 809–1420; Boister and Cryer, Tokyo International Military Tribunal, 32–40; Chang and Barker, “Victor's Justice,” 40, 47–49, 53; Dower, Embracing Defeat, 461–69.

Ball, Prosecuting War Crimes and Genocide, 70–85; Welch, The Tokyo Trial, 113–14.

For a more detailed look at the trials in the occupied parts of Germany and the Soviet bloc, see Crowe, The Holocaust, 397–435.

Watkins and Weber, War Crimes and War Crimes Trials, 369, 371.

Office of the High Commissioner for Human Rights, “Convention,” 1.

Rummel, China's Bloody Century, 205.

Ibid., 272–73.

Government of Tibet in Exile, Tibet, Human Rights Section, 1–3, Religion and National Identity Section, 2, 7; Eimer, “Dalai Lama Condemns China's ‘Cultural Genocide,’” 1; Wang, “Report Says Valid Grievances at Root of Tibet Unrest, A4; in 1960, the International Commission of Jurists reported that China had committed “acts of genocide” in Tibet in “an attempt to destroy the Tibetans as a religious group.” But since there was not “sufficient proof of the destruction of Tibetans as a race, nation, or ethnic group,” the report went on, such policies could not “be regarded as genocide in international law”; International Commission of Jurists, Tibet and the Chinese People's Republic, 1.

French, Tibet, Tibet, 279–83. French, who is very sympathetic to Tibetan suffering, estimates that as many as a half million Tibetans may have died as a “direct result” of Chinese policies.

Wei, 100 Questions, 38–45.

Yinan, “Release from a Cycle of Servitude,” 7.

Zhonglu et al., China's Tibet, iv.

The Profile of Human Rights Violations in Timor-Leste, 1–2.

Rejali, Torture and Democracy, 83–86.

Korean War Atrocities, 15.

Human Rights Watch, Uganda, 1; Boston, “Genocide in Uganda,” 1.

Hitchens, “Childhood's End,” 1.

Des Forges, “Leave None to Tell the Story,” 38–40, 123–30, 181–85, 199–302, 595–690; Prunier, The Rwanda Crisis, 74–92, 159–91; Dallaire, Shake Hands with the Devil, 421–60; Peskin, International Justice in Rwanda, 151–69.

International Commission of Inquiry on Darfur, Report of the International Commission, 3, 160–61.

Ban, “Climate Culprit in Darfur,” A15.

Prunier, Darfur, 148–58.

Ibid., 178–80.

“China and Darfur,” A30.

“A Warrant for Bashir,” 20; “Compounding the Crime,” 3–4.

Hiro (The Longest War, 250) estimates that the total war dead is, conservatively, 262,000 Iranians and 105,000 Iraqis. Official Iranian estimates claim that 194,931 Iranians died during the war, while the Iraqi government claimed afterwards that 800,000 were killed during the conflict; Charles Tripp says over 250,000 Iraqis died during the war. Tripp, History of Iraq, 239; Marr, Modern History of Iraq, 207. Marr says that Iraq suffered 380,000 casualties: 125,000 dead and 255,000 wounded.

Ali, “Chemical Weapons,” 43–49; Protocol for the Prohibition of the Use in War, 1; Convention on the Prohibition of the Development, 1–4.

Central Intelligence Agency, Iran's Weapons of Mass Destruction, 8–9; “News Chronology,” 20.

Timmermann, Death Lobby, 146.

Marr, Modern History of Iraq, 200; this was not the first instance of such brutality. In 1982, Shiite Muslim rebels tried to assassinate Saddam Hussein while he was riding through the village of Dujail. In retaliation, Hussein ordered the execution of 148 Dujaili residents, including many children.

Timmerman, Death Lobby, 293–94; Ali, “Chemical Weapons,” 52.

Marr, Modern History of Iraq, 202; in 2005, the district court in The Hague declared the al-Anfal campaign an act of genocide as defined by the 1948 Genocide Convention during the trial of Franz van Anraat, who was accused of selling to Iraq chemicals that were used against the Kurds. The charge against Anraat was later changed to war crimes.

United Nations, Resolution 582, 1.

Ali, “Chemical Weapons,” 52–53.

United Nations, Resolution 598, 1–2; idem, Resolution 612, 1; idem, Resolution 620, 1–2.

Hiro, The Longest War, 240, 248, 270.

Human Rights Watch, A Face and a Name, 12.

War Crimes Act of 1996, 18 U.S.C.2441; War Crimes, Convention (IV), 1–39; “Protocol Additional,” 1–55.

Military Commissions Act, 1, 11.

Cohn, “Injustice at Guantanamo,” 1–2.

“Rushing off a Cliff,” 2.

“UN Warning on Mid-East Crimes,” 1.

Amnesty International, Israel/Lebanon, 1.

Council on Foreign Relations, “Bouckaert,” 1.

International Committee of the Red Cross, Observations, 1.

Maslen and Wiebe, Cluster Munitions, 18.

Israel Ministry of Foreign Affairs, “Behind the Headlines,” 1–2.

“Counting the Cost,” 53; “Not Nearly Back to Normal,” 49; “UN Appoints Jewish Judge,” 2.

“A Thousand Tragedies,” 49.

Amnesty International, Israel/Opt, 3–14; McCarthy, “Hamas Accused of War Crimes,” 1–2.

Human Rights Watch, Precisely Wrong, 1–32; Drew, “Human Rights Groups Says,” A14; Katz, “IDF Doubts Credibility,” 1–2.

Jewish Peace News, “IDF,” 1–4.

Pidd, “Gaza Offensive,” 1–2.

Human Rights Watch, “UN,” 1–3.

Janjić, “Serbia,” 63–65; Malcolm, Bosnia, 213–15; Cohen, Broken Bones, 51–54; Ramet, “A Theory,” 769–71.

Sarajevo's Research and Documentation Center (Human Losses, Slides 1–32) writes that 39,684 civilians and 57,523 soldiers were killed during the conflict. Of this number, 66% were Bosnian Muslims; Tabean and Bijak, “War Related Deaths,” 206, 210.

Burg and Shoup, War in Bosnia-Herzegovina, 324–28.

United Nations Security Council, Resolution 1244, 1.

Ibid., 2–3.

United Nations, General Assembly, Resolution, 63/3, 1; International Court of Justice, Press Release No. 2009/17, 1–2.

Afghan Justice Project, War Crimes, 4.

“War Crimes in Chechnya,” 1.

Council of Europe, Initial Conclusions, 2.

Satkauskas, “Soviet Genocide Trials,” 388–409.

Lopez-Terres, “Arrest and Transfer of Indictees,” 1, 8; Wilson, “Judging History,” 923–24; by the summer of 2009, there were still eight ongoing trials and three upcoming trials, including one of the court's most sought-after criminal, Radovan Karadžić. Calendar of Court Proceedings, 1–2.

Statute of the International Tribunal for the Former Yugoslavia, 1–2; United Nations High Commissioner for Human Rights, “Rape and Abuse of Women,” 1–3; in 2003, the Office of the High Representative in Bosnia and Herzegovina and the ICTY recommended the creation of a War Crimes Chamber Project and the Registry for War Crimes and Organized Crimes. In early 2006, the War Crimes Chamber opened its first trial of 11 members of the Republika Srpska's Ministry of International Affairs, who were accused of genocide and conspiracy to commit genocide during the Srebrenica massacre.

Rome Statute of the International Criminal Court, Part 2, Article 7, section (g), defines as a crime against humanity “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.”

Des Forges, “Leave None to Tell the Story”, 737–40.

UN Office of the Special Adviser on Africa, “DDR and Transitional Justice,” 13–14, 30–31; for more on the controversies surrounding the ICTR, see Del Ponte, Madame Prosecutor; courts in Belgium and Switzerland have also convicted a handful of individuals for crimes committed in Rwanda.

Schabas, Introduction to the International Criminal Court, 3–5.

Convention on the Prevention and Punishment of the Crimes of Genocide, 1–2.

Schabas, Introduction to the International Criminal Court, 22–23, 465–69. A complete copy of the Rome Statute can be found on pages 381–464.

Rome Statute, Articles 1–16; Schabas, Introduction to the International Criminal Court, 141–43.

Rome Statute, Article 5, sections (a)–(c). Articles 6–8 define more specifically each of these crimes.

International Criminal Court, “Situations and Cases,” 1–2.