WAR CRIMES TRIALS IN THE PERSIAN GULF by Howard S. Levie (Paper prepared for presentation at a Hearing I am My name is Howard S. Levie. a retired Colonel of the Judge Advocate General's Corps of the United States Army. While on active duty my assignments included Chief of War Crimes in the Office of the Command Staff Judge Advocate in General Headquarters, Far East Command, in Tokyo. When I was Chief of the International Affairs Division in the Office of The Judge Advocate General of the Army, a War Crimes Branch was a part of my Division. To the best of my knowledge that Branch was the last formal war crimes unit in the United States Government and it was abolished in about 1957. After retiring from the Army I became a Professor of Law at the Saint Louis University Law School. For one year I was a Visiting Professor at the Naval War College in Newport, Rhode Island, occupying the Charles H. Stockton Chair of International Law. I am now a Professor Emeritus of Law at the Saint Louis University Law School and an Adjunct Professor at the Naval War College. Of course, I appear before you solely in my personal capacity, representing no one but myself. I have written extensively on war crimes, including the articles on that subject in two editions of the Encyclopedia Britannica, and the article which is to appear next year in the International Military and Defense Encyclopedia. I am presently engaged in research for a book to be entitled The Law of War Crimes. Contrary to popular belief, trials for war crimes are not a World War II phenomenon. One writer cites a number of such trials going back to the thirteenth century. He discusses at some length one trial that took place in 1474 before a court made up of judges from the Allied towns which had been at war with a common enemy. This was, perhaps, the first international tribunal to hear a case involving offenses committed prior to and during hostilities. It sentenced the accused to be executed and the sentence was carried out. After our Civil War several former Confederate officers and civilians were tried for maltreatment of Union prisoners of war. The most famous such case was that of Confederate Captain Henry Wirz, who had been the commander of the prisoner-of-war camp at Andersonville, Georgia. The House Committee hearings on that case will be found in H. R. Exec. Doc. No. 23, 40th Cong., 2nd Sess. The treaty that ended the Boer War included a provision reserving to the British the right to try certain unnamed Boers for violations of the law of war. During the course of World War I the French tried a number of captured Germans for war crimes; and the Treaty of Versailles ending that war contained a provision requiring Germany to turn over to the Allies for trial Germans charged with violations of the law of war. When the Allies presented to the German delegation a list of almost 1,000 names, including those of some of the most revered persons in Germany, the Chairman of the German delegation resigned and the German Government advised the Allies that compliance with that provision WAR CRIMES TRIALS of the Treaty was politically impossible. The Allies then agreed to have the cases tried by a German court. Twelve cases were tried, the results were a farce, and the Allies discontinued submitting names and files. The Treaty also provided for the trial of the ex-Kaiser by an international tribunal "for a supreme offence against international morality and the sanctity of treaties". He was not tried because he had sought asylum in neutral Netherlands and that country refused to extradite him. Incidentally, the representatives of the United States had vigorously opposed the provisions with respect to the Kaiser, both on the ground that Heads of State were responsible only to their own people and that there was no basis in international law for a trial for an offense against international morality. Our position on these matters changed radically after World War II. In August 1945, after the German surrender but while the war was still going on in the Pacific, representatives of the four major Allies (France, Great Britain, the Soviet Union, and the United States) met in London and drafted an agreement for the trial of the major German accused. Justice Robert H. Jackson of the Supreme Court was the representative of the United States. Attached to that Agreement was the Charter of the International Military Tribunal (IMT), the court that sat at Nuremberg. This Agreement was not submitted to the Congress. adhered to by nineteen other nations. It was subsequently It provided for three types conventional war crimes, and WAR CRIMES TRIALS crimes against humanity. While there was little argument about the right of a belligerent, or a group of belligerents, to try enemy persons for conventional war crimes, there was vigorous argument about the right to conduct trials for crimes against peace, and some argument about the right to conduct trials for crimes against humanity, the claim being made that these offenses had not previously been crimes under international law and that the accused were, therefore, being tried under an ex post facto law. Whatever the law in this regard may have been in 1945, there can be no doubt that today all three types of crimes are well recognized in international law. The London Charter provided for a Tribunal to consist of four judges, one from each of the nations which drafted it, and four alternates, lest problems be caused by the sickness or death of one or more of the judges during the course of the trial. It also provided for each of the four countries to have a Chief Prosecutor. Justice Jackson became the Chief Prosecutor for the United States. Neither the official position of an accused, nor acting pursuant to the orders of a Government or of a superior, would be an allowable Trials in absentia were permitted and, in fact, one accused, Martin Bormann, was So tried. (He was convicted and sentenced to death, but he was never found.) The Tribunal sat from 18 October 1945 to 31 August 1946. Its judgment was rendered on 1 October 1946. Of the twenty-two defendants tried, three were acquitted, twelve received death sentences, and seven were defense. WAR CRIMES TRIALS sentenced to varying periods of imprisonment. last remaining prisoner died some time ago. Rudolf Hess, the The Allied Control Council, the organ that governed Germany during the occupation, enacted a law concerning war crimes trials generally in the four zones of occupation. The Military Governor of the United States Zone then issued an implementing Ordinance. It was in accordance with the provisions of these two enactments that the United States conducted twelve additional trials at Nuremberg, trials known collectively as the "Subsequent Proceedings". The courts that tried these cases, although known as Military Tribunals, each consisted of three civilian judges and an alternate. These judges were, for the most part, borrowed from the highest courts of the various States and were designated by the President. In these twelve cases there were 177 defendants tried, of whom 35 were acquitted, 24 received death sentences, and 118 were sentenced to varying periods of imprisonment. The United States Supreme Court denied a number of applications for writs of habeas corpus. All told, several thousand war crimes trials were conducted by the Allied nations, of which close to 1,000 were held before tribunals of the United States. 489 cases involving 1672 accused were tried by the Army at Dachau, Germany, alone. For the most part these were trials for conventional war crimes (torture and murder of prisoners of war and enemy civilians, other types of maltreatment of both prisoners of war and enemy civilians, using |