War Crimes, Genocide, and Justice: A Global History PDF
Preview War Crimes, Genocide, and Justice: A Global History
War Crimes, Genocide, and Justice This page intentionally left blank War Crimes, Genocide, and Justice A Global History DAVID M. CROWE WAR CRIMES, GENOCIDE, AND JUSTICE Copyright © David M. Crowe, 2014. All rights reserved. First published in 2014 by PALGRAVE MACMILLAN® in the United States— a division of St. Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Where this book is distributed in the UK, Europe and the rest of the world, this is by Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN 978-1-349-38394-8 ISBN 978-1-137-03701-5 (eBook) DOI 10.1057/9781137037015 Library of Congress Cataloging-in-Publication Data is available from the Library of Congress. A catalogue record of the book is available from the British Library. Design by Newgen Knowledge Works (P) Ltd., Chennai, India. First edition: January 2014 10 9 8 7 6 5 4 3 2 1 Contents Acknowledgments vii 1 Crimes of War: Antiquity to the Middle Ages 1 2 War and Crimes in China and Postmedieval Europe 25 3 Colonialism: The Americas, Asia, and Africa 47 4 Birth of the Modern Laws of War—Lieber to Versailles 79 5 Peace, Law, and the Crimes of World War II 115 6 The Nuremberg IMT Trial 151 7 The Tokyo IMT Trial 195 8 Post–World War II National Trials in Europe and Asia 243 9 The Genocide and Geneva Conventions: Eichmann, Lemkin, Tibet, Guatemala, and the Korean War 283 10 IHL: Soviet-Afghan War, Saddam Hussein, Ad Hoc Tribunals, and Guantánamo 329 Epilogue: The ICC 379 Notes 383 Bibliography 479 Index 481 This page intentionally left blank Acknowledgments This work is the culmination of over two decades of research, writing, and work as an expert witness in various legal settings. My work on the Roma, for example, prompted requests from attorneys throughout the United States and Canada to work with them on a variety of asylum and other cases that dealt with the plight of minorities in Eastern Europe and Russia after 1989. I also dealt extensively with the legal status of the Roma in postcommunist Central and Eastern Europe in my A History of the Gypsies of Eastern Europe and Russia. Law was also a theme in my biog- raphy of Oskar Schindler, since I not only had to delve into the evolution of Nazi law vis-à-vis German and European Jews, but also the war crimes trials of several German and Austrian perpetrators, particularly Amon Göth. And toward the end of my research on Schindler’s life, I was drawn indirectly into several of the law suits launched by Emilie Schindler in the struggle over the ownership rights of Oskar’s private papers in Germany. By the time I began work on my The Holocaust: Roots, History, and Aftermath, I had decided that I needed to look more closely at the whole question of the marriage of history and international criminal law. And since I had worked extensively in the Göth trial transcripts while researching the Schindler book, I was curious about the various war crimes trials conducted throughout Europe after the war. Consequently, I devoted much of the last chapter of the Holocaust book to this subject, which set the stage for this current study. My interest in this topic was further stimulated by my participation in a two- week seminar for law school professors at the US Holocaust Memorial Museum in Washington, DC, on the question of the Holocaust and international law. I came away from that seminar with far more questions than answers, particularly when it came to the historical origins of international humanitarian law—a direct product of the atrocities and mass murders of World War II. Though there is ample literature on some of these roots, they often focus more on legal theory and precedent than the deeper historical roots of some of the core ideas that provide the basis for pre-IHL legal thinking. I finally decided that the only way I was going to be able to under- stand these deeper roots was to go back and look at them not only in their historical context, but also at the politics and other issues that often drove their developments. And since legal scholars often begin with modest discussions of precedents that often go back to antiquity, I decided I had to start at the beginning. But I was also concerned about charges of euro-centricity in international law, and wanted to be certain that any discussion I undertook looked at these historical roots globally and viii Acknowledgments not regionally. Moreover, since international criminal law is a relatively modern field, I wanted to find out what rules or regulations, if any, guided armies or military institutions in the field in premodern times, particularly when it came to POWs and other noncombatants. I also wanted to look into the nature of the crimes committed in warfare going back to antiquity to determine the interrelationship of such rules and crimes. I knew that this would be an overwhelming undertaking, particularly since I wanted to start afresh and try, as much as possible, to look at primary source material through the ages to be certain that my interpretations were drawn from such sources, knowing, of course, of the bias often found in such works. This has been an extremely rewarding undertaking, helped along by an out- standing editor, Chris Chappell, who has been extremely supportive of my work on this book. I would also like to thank the staffs at the law libraries of Duke University, George Washington University, Northwestern University, and Indiana University, where I spent long days poring over their vast collections of primary source material. I am particularly grateful to the Inter-Library Loan staff at the Walter Clinton Jackson Library, University of North Carolina, Greensboro, who often, on very short notice, came up time and again with obscure articles and books that I needed for my research. The Jackson Library is one of the best in the mid- Atlantic, and, time and again, whenever I needed a book or an article, they usually had it. This helped the pace of my research and writing immensely. It also did not hurt that my wife, Kathryn Moore Crowe, a scholar in her own right, is an associate dean at the Jackson Library. Her incredible loving support on many levels was the absolute key to the successful completion of this study. This is a complex study that touches not only on many eras of history and law, but also on a wide variety of subjects and issues. For the most part, I followed a chronological and geographic approach in my first few chapters, but decided to fall back on the approach I use in my law school classes to discuss in separate chapters the Nuremberg and Tokyo IMT trials as well as the tens of thousands of military commission and other trials conducted throughout Europe and Asia from 1945 to 1956. Collectively, one could argue that they are the most important war crimes trials in history, particularly when one considers the vast death and destruction wrought during this global conflict. Moreover, with the exception of Nuremberg and a handful of other trials conducted by the occupation authorities in Germany after the war, little is known about the thousands of trials conducted by the victor nations in Asia and Europe in the decade or so after the end of World War II. While a few of them are discussed in the shadows of historical and legal scholarship, many of them established important legal and historical precedents that are still refer- enced in court cases today. I adopted a modified case law approach for the last two chapters and tried, for example, to choose cases that showed interpretative contrasts when it came to ques- tions of genocide and violations of IHL. I also tried to look at the diversity of legal proceedings domestically and internationally over the past few decades with exam- ples from various major and minor trials. In the end, my hope is that, in the most modest way, this work will open up new doors of historical and legal scholarship. Chapter 1 Crimes of War: Antiquity to the Middle Ages I [Sung K’ang] have heard that Ts’in and Ts’oo are fighting together, and I am going to see the king of Ts’oo and persuade [them] to cease hostilities . . . Mencius said: “What course will you take to try to persuade them?” Kang answered, “I will tell them how unprofitable their course is to them.” “Master,” said Mencius, “your aim is great, but your argument is not good.” . . . [While all will] rejoice in the cessation of war [it shall be driven by] the pursuit of profit . . . [But] if you, starting from the ground of benevolence and righteousness, offer your counsels to the kings of Ts’in and Ts’oo . . . so as to stop the operations of their armies, . . . [then all will] find their pleasure in benevolence and righteousness.1 —Mencius War crimes and genocide are as old as history itself. So are customs, regulations, and laws that governed the behavior of armies in the field, particularly when it came to the treatment of individuals during times of war, be they combatants or civilians. Yet many scholars of international law do not think that these constraints or guidelines in antiquity fell within the confines of traditional interpretations of what constitutes an international legal order. According to Wilhelm G. Grewe, this could only be assumed to exist if there is a plurality of relatively independent (although not necessarily equal-ranking) bodies politic which are linked to each other in political, economic and cultural relationships and which are not subject to a superimposed authority having comprehensive law-making jurisdiction and executive competence. In their mutual relations these bodies politic must observe norms which are deemed to be binding on the basis of a legal consciousness rooted in religious, cultural and other common values.2 D.M. Crowe, War Crimes, Genocide, and Justice © David M. Crowe 2014
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