The International Military Tribunals
Upon World War II's conclusion, the Allied Powers established two major tribunals, the International Military Tribunal for Germany ("Nuremberg Tribunal") and the International Military Tribunal for the Far East ("Tokyo Tribunal"). In August 1945, the Allied powers, through a convention, created the International Military Tribunal, which had jurisdiction over the "trial and punishment of the major war criminals of the European Axis."
These trials gained notoriety because they sought, for the first time on a large scale, to hold military and civilian leaders of the Axis countries accountable for massive violations of the laws governing armed conflict. At the cessation of hostilities in Asia, a similar tribunal was created for some of the crimes committed by the Axis powers in Asia.
As the Allied Powers developed the constitutions of these military tribunals, the existing international legal framework's limitations became apparent. For example, the Geneva and Hague Conventions in place during World War II were focused on the relationship between belligerent nations and military forces while ignoring, at least to some extent, war's impact on the civilian population. The Hague Convention of 1907 codified a series of limitations and protections only with respect to the treatment of the civilian population in an occupied territory.
Therefore, crimes perpetrated against the civilian populations of Poland, Austria, Czechoslovakia, Hungary, the Netherlands, Belgium, France, Yugoslavia, and the other countries invaded by Germany were punishable under the Hague Conventions. The crimes committed against German civilians, however, were not specifically covered under any of the existing conventions governing conduct during warfare because they were not committed by an invading power, but rather by the citizens' own government. This absence of law establishing protections for all civilians challenged the Tribunals' ability to hold military and civilian leaders of the Third Reich accountable for the war crimes committed against its own civilian population.
In response to this void, the framers of the Military Tribunals used customary international law to establish the category of war crimes identified as "crimes against humanity." The Tribunals defined crimes against humanity as "murder, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated." The category of crimes against humanity enabled prosecutors to hold German officials accountable for not only the atrocities committed against citizens of other nations but also those atrocities visited on Germany's own citizens.
In addition to the Nuremberg and Tokyo Tribunals, which tried only the top echelon of political and military leaders, thousands of war crimes trials were conducted by more than twenty countries in Europe, Asia, Australia, and the Pacific. The majority of these trials were conducted by military tribunals. Ludwig Merz and Erwin Metz, the only German officers to be tried for the violations of the laws of war committed at Berga, faced such a tribunal. Because of the extraordinary numbers of violations that occurred during World War II, without these local, smaller war crimes trials even fewer individuals would have been held accountable for their illegal conduct.
Development of the Geneva Conventions of 1949
The second major development in international law stemming from the experiences of World War II was a complete revision of the Geneva and Hague Conventions of the late nineteenth and early twentieth centuries. The resulting convention, the Geneva Conventions of August 12, 1949, encompasses four conventions which cover: I) the Wounded and Sick; II) the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; III) Relative to the Treatment of Prisoners of War; and IV) Relative to the Protection of the Civilian Persons in Time of War. The most important development of the 1949 Geneva Conventions was the extended reach of the laws of war. For the most part, prior conventions regulated only conduct on the battlefield. The 1949 Geneva Conventions are broader in scope and regulate conduct in the entire military "theater of operations."
These broad regulations are most prominent in the Fourth Geneva Convention, which is intended to establish specific protections for the civilian population -- non-combatants -- among whom war is often waged. For example, the Fourth Convention explicitly prohibits the targeting of sites absent a connection to a military position or military use. The Fourth Convention established the now common concept of "grave breaches." The Convention defines grave breaches as:
"[W]ilful killing, torture or inhumane treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly."Violation of these grave breaches is a war crime punishable under the Convention.
In addition to articulating these crimes against protected persons, the Convention provided for universal jurisdiction over any individuals who either commit or order someone else to commit grave breaches against protected persons. Universal jurisdiction obligates all parties to the Convention to either extradite or try all persons alleged to have committed or ordered grave breaches, regardless of their nationality. This universality of jurisdiction has not, however, been readily accepted by many nations due to long-standing norms of sovereignty -- although in recent years acceptance of universal jurisdiction by domestic legal systems has grown. Despite the lingering doubts regarding universal jurisdiction, the nearly universal accession to these Conventions has led many international lawyers, legal scholars, and diplomats to assert that the 1949 Conventions have achieved the status of customary international law.
Genocide Convention
Another important development in the law of war was the ratification, in 1948, of the Convention on the Prevention and Punishment of the Crime of Genocide. A direct result of the Holocaust, the Genocide Convention is unique in two aspects. First, the Genocide Convention requires contracting nations to proactively prevent genocide -- not only to prosecute those responsible.
This "prevention requirement" was an important argument for intervention in recent conflicts including Bosnia, when intervention came only after the massacre at Srebrenica in 1995, and in Rwanda in 1994, where the international community failed to intervene until the genocide was well underway, and later for early NATO intervention in Kosovo to prevent the genocide of the Kosovar Albanians. Second, the Genocide Convention does not allow a nation to violate its terms -- meaning that genocide is never justifiable.
