Laws of War

Review: what is public international law?

Rules that govern the relationships between states or people in more than one state.

Review: how are international laws/rules expressed?

Treaties, conventions, and agreements; international law has institutions but weak enforcement structures.

Review: what is private international law or conflict of laws?

Governs legal disputes between private individuals, businesses, or entities across different countries.

How does international law differ from domestic law?

No international sovereign (no world government or police), no global legislature (not responsive), based on consent and self-enforcement, concept of universal jurisdiction, and made up of customary international law.

What are customary international law principoles?

Practices with general acceptability in most countries such as diplomatic immunity and distinguishing combatants from civilians.

What are laws of war known as (as of 1977)?

International Humanitarian Law.

What is International Humanitarian Law?

A set of rules on humanitarian protections (Laws of Geneva) and a set of rules on how wars can be fought (combat methods, weapons, i.e. Law of the Hague).

How did laws of war exist before IHL?

Ancient civilizations distinguished between combatants and civilians as well as had certain traditions dictating that captured combatants and civilians should be humanely treated; in ancient combat, certain weapons were prohibited if they caused excessive damage.

What is an example of ancient combat prohibition?

Second Lateran Council in 1139 condemned the use of the crossbow.

What was the first modern codification of the laws of armed conflict?

The Lieber Code, drafted during the American Civil War by Prof. Francis Lieber in 1863.

How is IHL now the most codified area of ICL?

Hague Conventions on land warfare from the Lieber Code and antecedent codifications are contained in a web of bilateral and multilateral treaties.

What is the International Military Tribunal?

An agreement between the Allied Powers after the end of the WWII used to try Nazi war criminals during the international Nuremberg Trials.

What was evidence of war crime trials prior to the IMT?

Prosecutions in Britain in 1305, Austria in 1474, and the United States and 1865.

What was the prosecution in the English court?

Trial of a Scottish national warrior Sir William Wallace charged with and convicted of waging the First War of Scottish Independence against the English.

What was the prosecution in Austria?

War crimes trial of Peter von Hagenbach as the first prosecution of an individual by an international tribunal (convened by the Holy Roman Empire).

What was the prosecution in the United States?

Prosecution of Henry Wirz, a Confederate Captain accused of mistreating and murdering Union soldiers detained in Andersonville prison in violation of the laws and customs of war.

How did international prosecutions begin before IMT?

Piracy acts justified application of universal jurisdiction as an international crime and was tried as such; prohibition against slavery opened the door to criminalizing activity and was considered a crime across borders.

What happened after WWI regarding international law (if IMT was after WWII)?

The Allies convened a Commission on the Responsibility of the Individual Authors of the War and on Enforcement of Penalties to inquire into culpable conduct by the Central powers during the war.

Why was the attempt to hold international trials unsuccessful after WWI?

Americans did not intend to participate and focused their energies on President Wilson’s project for the League of Nations.

What sort of action occurred after World War One instead?

According to Article 228 of the Treaty of Versailles, lesser German defendants were to be tried before the domestic military tribunals of the Allied and Associated Powers.

What was the League of Nations?

First worldwide intergovernmental organization established with the primary mission of maintaining international peace and preventing future global conflicts; led by Woodrow Wilson but US did not join.

What was the League of Nation’s judicial branch?

The Permanent Court of International Justice, made for safeguarding the peace of nations by resolving international disputes without recourse to war.

How did the League of Nations fail and end operations in 1939?

Advisory recommendation for the creation of a permanent international criminal court was rejected in 1920, Japan invaded Northeast China and the Soviet Union was expelled for invading Finland.

What action was taken after WWII?

Destructive war led to the motto of “never again” and need to reform international system to prevent future conflicts.

What nation played a central role in post-1945 int. order?

United States which encouraged international institutions to facilitate peace and cooperation, i.e. UN, NATO, and WTO.

Who was Robert H. Jackson?

American lawyer, US Solicitor General and Attorney General, and Justice on the US Supreme Court.

How does RHK relate to international law?

Left USSC to participate at the Nuremberg proceedings, serving as a prosecutor for the US at the IMT.

What is involved in Jackson’s opening remarks at IMT?

Tries to balance needs of law and politics (no simple labelling) as well as balance optics and legality (prosecution made by the victor nations cannot be avoided).

What are the optics and legalities mentioned in Jackson’s opening remarks?

West does not do “show trials” and the trials should not be viewed as the victor’s justice only; IMT and charges were created after the conflict and Jackson was acting as a prosecutor of crimes not committed against US people.