War crime, in international law, serious violation of the laws or customs of war as defined by

international customary law and international treaties. The term war crime has been difficult
to define with precision, and its usage has evolved constantly, particularly since the end of
World War I. The first systematic attempt to define a broad range of war crimes was the
Instructions for the Government of Armies of the United States in the Field—also known as
the “Lieber Code” after its main author, Francis Lieber—which was issued by U.S. President
Abraham Lincoln during the American Civil War and distributed among Union military
personnel in 1863. For example, the Lieber Code held that it was a “serious breach of the law
of war to force the subjects of the enemy into service for the victorious government” and
prohibited “wanton violence committed against persons in the invaded country,” including
rape, maiming, and murder, all of which carried the penalty of death. More recently,
definitions of war crimes have been codified in international statutes, such as those creating
the International Criminal Court and the war crimes tribunals in Yugoslavia and Rwanda, for
use in international war crimes tribunals. In contrast to earlier definitions, modern definitions
are more expansive and criminalize certain behaviours committed by civilians as well as by
military personnel.

The circumstances referred to in subsection (a) are that the person committing such war
crime or the victim of such war crime is a member of the Armed Forces of the United
States or a national of the United States (as defined in section 101 of the Immigration
and Nationality Act).
(c)DEFINITION.—As used in this section the term “war crime” means any conduct—
(1)
defined as a grave breach in any of the international conventions signed at Geneva 12
August 1949, or any protocol to such convention to which the United States is a party;
(2)
prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV,
Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3)
which constitutes a grave breach of common Article 3 (as defined in subsection (d))
when committed in the context of and in association with an armed conflict not of an
international character; or
(4)
of a person who, in relation to an armed conflict and contrary to the provisions of the
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other
Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996),
when the United States is a party to such Protocol, willfully kills or causes serious injury
to civilians.
(d)COMMON ARTICLE 3 VIOLATIONS.—
(1)PROHIBITED CONDUCT.—In subsection (c)(3), the term “grave breach of common
Article 3” means any conduct (such conduct constituting a grave breach of common
Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
(A)Torture.—
The act of a person who commits, or conspires or attempts to commit, an act specifically
intended to inflict severe physical or mental pain or suffering (other than pain or
suffering incidental to lawful sanctions) upon another person within his custody or
physical control for the purpose of obtaining information or a confession, punishment,
intimidation, coercion, or any reason based on discrimination of any kind.
(B)Cruel or inhuman treatment.—
The act of a person who commits, or conspires or attempts to commit, an act intended
to inflict severe or serious physical or mental pain or suffering (other than pain or
suffering incidental to lawful sanctions), including serious physical abuse, upon another
within his custody or control.
(C)Performing biological experiments.—
The act of a person who subjects, or conspires or attempts to subject, one or more
persons within his custody or physical control to biological experiments without a
legitimate medical or dental purpose and in so doing endangers the body or health of
such person or persons.
(D)Murder.—
The act of a person who intentionally kills, or conspires or attempts to kill, or kills
whether intentionally or unintentionally in the course of committing any other offense
under this subsection, one or more persons taking no active part in the hostilities,
including those placed out of combat by sickness, wounds, detention, or any other
cause.
(E)Mutilation or maiming.—
The act of a person who intentionally injures, or conspires or attempts to injure, or
injures whether intentionally or unintentionally in the course of committing any other
offense under this subsection, one or more persons taking no active part in the
hostilities, including those placed out of combat by sickness, wounds, detention, or any
other cause, by disfiguring the person or persons by any mutilation thereof or by
permanently disabling any member, limb, or organ of his body, without any legitimate
medical or dental purpose.
(F)Intentionally causing serious bodily injury.—
The act of a person who intentionally causes, or conspires or attempts to cause, serious
bodily injury to one or more persons, including lawful combatants, in violation of the law
of war.
(G)Rape.—
The act of a person who forcibly or with coercion or threat of force wrongfully invades, or
conspires or attempts to invade, the body of a person by penetrating, however slightly,
the anal or genital opening of the victim with any part of the body of the accused, or
with any foreign object.
(H)Sexual assault or abuse.—
The act of a person who forcibly or with coercion or threat of force engages, or conspires
or attempts to engage, in sexual contact with one or more persons, or causes, or
conspires or attempts to cause, one or more persons to engage in sexual contact.
(I)Taking hostages.—
The act of a person who, having knowingly seized or detained one or more persons,
threatens to kill, injure, or continue to detain such person or persons with the intent of
compelling any nation, person other than the hostage, or group of persons to act or
refrain from acting as an explicit or implicit condition for the safety or release of such
person or persons.

After 216 court sessions, on October 1, 1946, the verdict on 22 of the original 24 defendants
was handed down. (Robert Ley committed suicide while in prison, and Gustav Krupp von
Bohlen und Halbach’s mental and physical condition prevented his being tried.) Three of the
defendants were acquitted: Hjalmar Schacht, Franz von Papen, and Hans Fritzsche. Four
were sentenced to terms of imprisonment ranging from 10 to 20 years: Karl Dönitz, Baldur
von Schirach, Albert Speer, and Konstantin von Neurath. Three were sentenced to life
imprisonment: Rudolf Hess, Walther Funk, and Erich Raeder. Twelve of the defendants were
sentenced to death by hanging. Ten of them—Hans Frank, Wilhelm Frick, Julius Streicher,
Alfred Rosenberg, Ernst Kaltenbrunner, Joachim von Ribbentrop, Fritz Sauckel, Alfred Jodl,
Wilhelm Keitel, and Arthur Seyss-Inquart—were hanged on October 16, 1946. Martin
Bormann was tried and condemned to death in absentia, and Hermann Göring committed
suicide before he could be executed.

In rendering these decisions, the tribunal rejected the major defenses offered by the
defendants. First, it rejected the contention that only a state, and not individuals, could be
found guilty of war crimes; the tribunal held that crimes of international law are committed
by men and that only by punishing individuals who commit such crimes can the provisions of
international law be enforced. Second, it rejected the argument that the trial and adjudication
were ex post facto. The tribunal responded that such acts had been regarded as criminal prior
to World War II.

The Nuremberg Trial and the Tokyo War Crimes Trials (1945–1948)
Following World War II, the victorious Allied governments established the first international
criminal tribunals to prosecute high-level political officials and military authorities for war
crimes and other wartime atrocities. The four major Allied powers—France, the Soviet
Union, the United Kingdom, and the United States—set up the International Military
Tribunal (IMT) in Nuremberg, Germany, to prosecute and punish “the major war criminals of
the European Axis.” The IMT presided over a combined trial of senior Nazi political and
military leaders, as well as several Nazi organizations. The lesser-known International
Military Tribunal for the Far East (IMTFE) was created in Tokyo, Japan, pursuant to a 1946
proclamation by U.S. Army General Douglas MacArthur, Supreme Commander for the
Allied Powers in occupied Japan. The IMTFE presided over a series of trials of senior
Japanese political and military leaders pursuant to its authority “to try and punish Far Eastern
war criminals.

The origins, composition, and jurisdiction of the Nuremberg and Tokyo tribunals differed in
several important respects beyond their geographical differences and personalities. Plans to
prosecute German political and military leaders were announced in the 1942 St. James
Declaration. In the declaration, the United States joined Australia, Canada, China, India, New
Zealand, the Union of South Africa, the Soviet Union, and nine exiled governments of
German-occupied countries to condemn Germany’s “policy of aggression.” The Declaration
stated that these governments “placed among their principal war aims the punishment,
through the channel of organized justice, of those guilty of or responsible for these crimes,
whether they have ordered them, perpetrated them or participated in them.”

In August 1945, the four major Allied powers therefore signed the 1945 London Agreement,
which established the IMT. The following additional countries subsequently “adhered” to the
agreement to show their support: Australia, Belgium, Czechoslovakia, Denmark, Ethiopia,
Greece, Haiti, Honduras, India, Luxembourg, the Netherlands, New Zealand, Norway,
Panama, Paraguay, Poland, Uruguay, and Yugoslavia.

The Charter of the International Military Tribunal (or Nuremberg Charter) was annexed to
the 1945 London Agreement and outlined the tribunal’s constitution, functions, and
jurisdiction. The Nuremberg tribunal consisted of one judge from each of the Allied powers,
which each also supplied a prosecution team. The Nuremberg Charter also provided that the
IMT had the authority to try and punish persons who “committed any of the following
crimes:”
(a) Crimes Against Peace: namely, planning, preparation, initiation or waging of a war of
aggression, or a war in violation of international treaties, agreements or assurances, or
participation in a Common Plan or Conspiracy for the accomplishment of any of the
foregoing;
(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall
include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any
other purpose of civilian population of or in occupied territory, murder or ill-treatment of
prisoners of war or persons on the seas, killing of hostages, plunder of public or private
property, wanton destruction of cities, towns, or villages, or devastation not justified by
military necessity;
(c) Crimes Against Humanity: namely, murder, extermination, 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 execution of or in connection with
any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law
of the country where perpetrated.
The IMT prosecutors indicted twenty-two senior German political and military leaders,
including Hermann Goering, Rudolph Hess, Joachim von Ribbentrop, Alfred Rosenberg, and
Albert Speer. Nazi leader Adolf Hitler was not indicted because he had committed suicide in
April 1945, in the final days before Germany’s surrender. Seven Nazi organizations also were
indicted. The prosecutors sought to have the tribunal declare that these organizations were
“criminal organizations” in order to facilitate the later prosecution of their members by other
tribunals or courts.

The Nuremberg Trial lasted from November 1945 to October 1946. The tribunal found
nineteen individual defendants guilty and sentenced them to punishments that ranged from
death by hanging to fifteen years’ imprisonment. Three defendants were found not guilty, one
committed suicide prior to trial, and one did not stand trial due to physical or mental illness.
The Nuremberg Tribunal also concluded that three of the seven indicted Nazi organizations
were “criminal organizations” under the terms of the Charter: the Leadership Corps of the
Nazi party; the elite “SS” unit, which carried out the forced transfer, enslavement, and
extermination of millions of persons in concentration camps; and the Nazi security police and
the Nazi secret police, commonly known as the ‘SD’ and ‘Gestapo,’ respectively, which had
instituted slave labor programs and deported Jews, political opponents, and other civilians to
concentration camps.

Unlike the IMT, the IMTFE was not created by an international agreement, but it nonetheless
emerged from international agreements to try Japanese war criminals. In July 1945, China,
the United Kingdom, and the United States signed the Potsdam Declaration, in which they
demanded Japan’s “unconditional surrender” and stated that “stern justice shall be meted out
to all war criminals.” At the time that the Potsdam Declaration was signed, the war in Europe
had ended but the war with Japan was continuing. The Soviet Union did not sign the
declaration because it did not declare war on Japan until weeks later, on the same day that the
United States dropped the second atomic bomb at Nagasaki. Japan surrendered six days later,
on August 14, 1945.

At the subsequent Moscow Conference, held in December 1945, the Soviet Union, the United
Kingdom, and the United States (with concurrence from China) agreed to a basic structure for
the occupation of Japan. General MacArthur, as Supreme Commander of the Allied Powers,
was granted authority to “issue all orders for the implementation of the Terms of Surrender,
the occupation and control of Japan, and all directives supplementary thereto.”

In January 1946, acting pursuant to this authority, General MacArthur issued a special
proclamation that established the IMTFE. The Charter for the International Military Tribunal
for the Far East was annexed to the proclamation. Like the Nuremberg Charter, it laid out the
composition, jurisdiction, and functions of the tribunal.

The Charter provided for MacArthur to appoint judges to the IMTFE from the countries that
had signed Japan’s instrument of surrender: Australia, Canada, China, France, India, the
Netherlands, Philippines, the Soviet Union, the United Kingdom, and the United States. Each
of these countries also had a prosecution team.

As with the IMT, the IMTFE had jurisdiction to try individuals for Crimes Against Peace,
War Crimes, and Crimes Against Humanity, and the definitions were nearly verbatim to
those contained in the Nuremberg Charter. The IMTFE nonetheless had jurisdiction over
crimes that occurred over a greater period of time, from the 1931 Japanese invasion of
Manchuria to Japan’s 1945 surrender.

The IMTFE presided over the prosecution of nine senior Japanese political leaders and
eighteen military leaders. A Japanese scholar also was indicted, but charges against him were
dropped during the trial because he was declared unfit due to mental illness. Japanese
Emperor Hirohito and other members of the imperial family were not indicted. In fact, the
Allied powers permitted Hirohito to retain his position on the throne, albeit with diminished
status.

The Tokyo War Crimes Trials took place from May 1946 to November 1948. The IMTFE
found all remaining defendants guilty and sentenced them to punishments ranging from death
to seven years’ imprisonment; two defendants died during the trial.
https://history.state.gov/milestones/1945-1952/nuremberg

After the Nuremberg and Tokyo War Crimes trials, additional trials were held to try “minor”
war criminals. These subsequent trials, however, were not held by international tribunals but
instead by domestic courts or by tribunals operated by a single Allied power, such as military
commissions. In Germany, for example, each of the Allied powers held trials for alleged war
criminals found within their respective zones of occupation. The United States held twelve
such trials from 1945 to 1949, each of which combined defendants who were accused of
similar acts or had participated in related events. These trials also were held in Nuremberg
and thus became known informally as the “subsequent Nuremberg trials.” In Japan, several
additional trials were held in cities outside Tokyo.

The Nuremberg and Tokyo tribunals contributed significantly to the development of

international criminal law, then in its infancy. For several decades, these tribunals stood as
the only examples of international war crimes tribunals, but they ultimately served as models
for a new series of international criminal tribunals that were established beginning in the
1990s. In addition, the Nuremberg Charter’s reference to “crimes against peace,” “war
crimes,” and “crimes against humanity” represented the first time these terms were used and
defined in an adopted international instrument. These terms and definitions were adopted
nearly verbatim in the Charter of the IMTFE, but have been replicated and expanded in a
succession of international legal instruments since that time.
The Tokyo trials were not the only forum for the punishment of Japanese war criminals,
merely the most visible. In fact, the Asian countries victimized by the Japanese war machine
tried far more Japanese -- an estimated five thousand, executing as many as 900 and
sentencing more than half to life in prison. But with Japan under the control of the
Americans, the most prominent Japanese war leaders came under MacArthur's jurisdiction.

The Potsdam declaration of July 1945 had called for trials and purges of those who had
"deceived and misled" the Japanese people into war. That was the simple part; there was
major disagreement, both among the Allies and within the U.S., about whom to try and how
to try them. Despite the lack of consensus, MacArthur lost no time, ordering the arrest of
thirty-nine suspects -- most of them members of General Tojo's war cabinet -- on September
11, just over a week after the surrender. Perhaps caught off guard, Tojo tried to committ
suicide, but was resuscitated with the help of American doctors eager to deny him even that
means of escape.

On October 6 MacArthur received a directive, soon approved by the other Allied powers,
granting him the authority to proceed with the major trials and giving him basic guidelines
for their conduct. As they had done in Germany, the Allies set up three broad categories.
"Class A" charges alleging "crimes against peace" were to be brought against Japan's top
leaders who had planned and directed the war. Class B and C charges, which could be leveled
at Japanese of any rank, covered "conventional war crimes" and "crimes against humanity,"
respectively. In early November, the supreme commander was given authority to purge other
war time leaders from public life. Again, MacArthur moved quickly: by December 8 he had
set up an international prosecution section under former U.S. assistant attorney general
Joseph Keenan, which began gathering evidence and preparing for the high-profile Class A
trials.

On January 19, 1946, MacArthur announced the establishment of the International Military
Tribunal for the Far East (IMFTE), and a few weeks later selected its eleven judges from
names submitted to him by the governments sitting on the Allied Far Eastern Commission.
He also named Keenan the chief prosecutor and Australian Sir William Webb the tribunal's
president. Twenty-eight high-ranking political and military leaders were indicted on 55
counts of "crimes against peace, conventional war crimes, and crimes against humanity."

The Tokyo trials began on May 3, 1946, and lasted two and a half years. Although an
improvement over the hasty Manila trials, which were also organized by MacArthur and
resulted in the executions of Generals Yamashita and Homma, the Tokyo trials have been
criticized as another example of "victors' justice." One of the more authoratative studies
condemns them strongly: "We have found its foundation in international law to be shaky. We
have seen that its process was seriously flawed. We have examined the verdict's inadequacy
as history."

On November 4, 1948, Webb announced that all of the defendants had been found guilty.
Seven were sentenced to death, sixteen to life terms, two to lesser terms, two had died during
the trials and one had been found insane. After reviewing their decisions, MacArthur
expressed his regrets but praised the work of the tribunal and upheld the verdicts. Although
calling the duty "utterly repugnant to me," MacArthur went on to say, "No human decision is
infallible but I can conceive of no judicial process where greater safeguard was made to
evolve justice."

On December 23, 1948, General Tojo and six others were hung at Sugamo prison.
MacArthur, afraid of embarrassing and antagonizing the Japanese people, defied the wishes
of President Truman and barred photography of any kind, instead bringing in four members
of the Allied Council to act as official witnesses.
http://www.pbs.org/wgbh/amex/macarthur/peopleevents/pandeAMEX101.html

KEY DATES
AUGUST 8, 1945
CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL (IMT) ANNOUNCED
AT LONDON CONFERENCE
The International Military Tribunal (IMT) is composed of judges from the United States,
Great Britain, France and the Soviet Union. Leading Nazi officials will be indicted and
placed on trial in Nuremberg, Germany, under Article 6 of the IMT's Charter for the
following crimes: (1) Conspiracy to commit charges 2, 3, and 4, which are listed here; (2)
crimes against peace—defined as participation in the planning and waging of a war of
aggression in violation of numerous international treaties; (3) war crimes—defined as
violations of the internationally agreed upon rules for waging war; and (4) crimes against
humanity—"namely, murder, extermination, enslavement, deportation, and other inhumane
acts committed against any civilian population, before or during the war; or persecution on
political, racial, or religious grounds in execution of or in connection with any crime within
the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country
where perpetrated."

OCTOBER 6, 1945
LEADING NAZI OFFICIALS INDICTED FOR WAR CRIMES
The four chief prosecutors of the International Military Tribunal (IMT)—Robert H. Jackson
(United States), Francois de Menthon (France), Roman A. Rudenko (Soviet Union), and Sir
Hartley Shawcross (Great Britain)—hand down indictments against 24 leading Nazi officials.
The indicted include Hermann Goering (Hitler's heir designate), Rudolf Hess (deputy leader
of the Nazi party), Joachim von Ribbentrop (foreign minister), Wilhelm Keitel (head of the
armed forces), Wilhelm Frick (minister of the interior), Ernst Kaltenbrunner (head of security
forces), Hans Frank (governor-general of occupied Poland), Konstantin von Neurath
(governor of Bohemia and Moravia), Erich Raeder (head of the navy), Karl Doenitz (Raeder's
successor), Alfred Jodl (armed forces command), Alfred Rosenberg (minister for occupied
eastern territories), Baldur von Schirach (head of the Hitler Youth), Julius Streicher (radical
Nazi antisemitic publisher), Fritz Sauckel (head of forced-labor allocation), Albert Speer
(armaments minister), and Arthur Seyss-Inquart (commissioner for the occupied
Netherlands). Martin Bormann (Hitler's adjutant) is to be tried in absentia.

OCTOBER 1, 1946
VERDICT AT NUREMBERG
The International Military Tribunal (IMT) announces its verdicts. It imposes the death
sentence on 12 defendants (Goering, Ribbentrop, Keitel, Kaltenbrunner, Rosenberg, Frank,
Frick, Streicher, Sauckel, Jodl, Seyss-Inquart, and Bormann). Three are sentenced to life
imprisonment (Hess, economics minister Walther Funk, and Raeder). Four receive prison
terms ranging from 10 to 20 years (Doenitz, Schirach, Speer, and Neurath). The court acquits
three defendants: Hjalmar Schacht (economics minister), Franz von Papen (German politician
who played an important role in Hitler's appointment as chancellor), and Hans Fritzsche
(head of press and radio). The death sentences are carried out on October 16, 1946, with two
exceptions: Goering committed suicide shortly before his scheduled execution, and Bormann
remained missing. The other 10 defendants are hanged, their bodies cremated, and the ashes
deposited in the Iser River. The seven major war criminals sentenced to prison terms are
remanded to the Spandau Prison in Berlin.
https://www.ushmm.org/outreach/en/article.php?ModuleId=10007722

Another reason the Nuremberg Trial is a landmark is that it advanced and bolstered the cause
of international protection of human rights, especially where the human rights violations are
committed by governments. Large-scale violations of basic human rights were recognized as
criminal acts under international law, and individuals who had committed such violations
while clothed with the power of a modern state were brought to justice and punished.

Furthermore, the fundamental due process principle that even heinous offenders are entitled
to a fair trial and an adequate defense was spectactularly reaffirmed by the way the
Nuremberg defendants were treated by the IMT. If there was anything repugnant to Nazis, it
was giving a criminal defendant a fair trial. Denying a man or woman charged with crime a
fair trial on the charges was not only Nazi practice, but also a Nazi principle. One of the
defendants, Goering, for example, who like other Nazis had contempt for criminal defendants
and their attorneys, had boasted in 1934: "We deprive the enemies of the people of legal
defense... We National Socialists wittingly oppose false gentleness and false
humanitarianism... We do not recognize the fallacious quibbles of lawyers or the monkey
tricks of judicial subtleties."

The Allies, on the other hand, gave the Nazis what the Nazis never gave anybody and what
they would never have given the Allies–a fair trial conducted in a dignified atmosphere,
presided over by impartial judges. The defendants were represented by competent, diligent,
court-appointed counsel, and the trial was conducted in what prosecutor Robert Jackson
called "solemn grandeur." There were times when testimony about Nazi horrors plunged the
courtroom into great sadness and sepulchral gloom; there were interludes when the courtroom
sagged with boredom; there were rare moments of humor when the judges, the attorneys, the
defendants, and even the white-helmeted military police guards would laugh or smile. But
the tone in the IMT courtroom was usually one of deliberation, civility, calmness, grave
earnestness, and respect for rights of the accused. There can be no greater contrast than that
between the respectful judicial decorum of the Nuremberg Trial and the inhumane show
trials, the hideous caricatures of justice featuring shouting, sardonic judges and browbeaten
accuseds, that the Nazis gave their defendants.

And while the Nuremberg defendants were confined in close custody and under strict
surveillance before and during the trial, they were never subjected to the torture and cruelties
that Nazis regularly inflicted on their prisoners. There were no Gestapo cellars in Allied
prisons.

The everlasting achievement of the Nuremberg Trial is that it firmly established, as a

governing rule of law, what has been called "the Nuremberg principle," applicable to criminal
proceedings generally. The Nuremberg principle has two parts. First, the fact that the crime
charged was committed by a government officer or agent, whether high or low, is no defense
to the criminal charge, and also is not a matter that mitigates punishment. Second, the fact
that the crime charged was committed pursuant to a government order or to superior orders is
not a defense to the crime charged, although it may be considered in mitigation of
punishment.

The ten hangings, which officially brought the Nuremberg Trial proceedings to a close,
continue to exert a morbid appeal. The eleventh Nazi condemned to death, Goering,
committed suicide in his cell two hours before the executions were scheduled to begin.

The executions, in a brightly lighted prison gymnasium where three looming black wooden
gallows had been erected, were witnessed by a handful of Allied military officers and eight
journalists, one of whom, Kingsbury Smith of International News Service, wrote a famous
newspaper article, "The Execution of Nazi War Criminals, 16 October 1946," based on his
eyewitness observations. Although Smith discreetly omitted mentioning it, the experienced
Army hangman, Master Sgt. John C. Woods, botched the executions. A number of the
hanged Nazis died, not quickly from a broken neck as intended, but agonizingly from slow
strangulation. Ribbentrop and Sauckel each took 14 minutes to choke to death, while Keitel,
whose death was the most painful, struggled for 24 minutes at the end of the rope before
expiring.

To the witnesses, however, what was most striking about the executions was not the death
agonies of the Nazis, but the stern, unadorned, Old Testament righteousness of the hangings.
As Robert E. Conot wrote of the ten executions: "It was a grim, pitiless scene. But for those
who had sat through the horrors and tortures of the trial, who had learned of men dangled
from butcher hooks, of women mutilated and children jammed into gas chambers, of
mankind subjected to degradation, destruction, and terror, the scene conjured a vision of
stark, almost biblical justice."

In 2000, a miniseries based on the Nuremberg Trial appeared on TV. The miniseries, entitled
Nuremberg, was inspired by the Persico book, and starred Alec Baldwin as prosecutor Robert
Jackson. Surprisingly, perhaps, the miniseries was, with some exceptions, historically
accurate. The testimony of Hoess, the Auschwitz commandant, for example, which so
stunned the IMT courtroom, was depicted quite truthfully. In fact, many of the courtroom
scenes in the miniseries came verbatim from the Nuremberg Trial's published transcript.
Perhaps the best scenes in the miniseries were when Alec Baldwin reenacted, quite
accurately, Robert Jackson's splendid opening and closing speeches for the prosecution–
speeches that authoritative lawyers regard as the greatest ever delivered at a criminal trial.

Remarkably, the actors who portrayed the trial defendants bore an amazing physical
resemblance to the Nazi leaders actually tried. The miniseries was also correct in implying
that Goering was able to commit suicide with a poison capsule only because of assistance
given him by Capt. Jack G. Wheelis, one of the military police guards. Since the publication
of Ben E. Swearingen's book The Mystery of Hermann Goering's Suicide (1985), historians
have generally come to accept Swearingen's conclusion that Wheelis, an immature,
impressionable U. S. Army officer from Texas whom Goering showered with gift watches
and jewelry, probably, out of mistaken sympathy for Goering, allowed Goering access to
stored luggage where the poison was hidden, and then looked the other way as Goering went
through the luggage.

History, it must be pronounced, has vindicated the Nuremberg Trial judge who, according to
Telford Taylor, The Anatomy of the Nuremberg Trials (1992), wrote in his personal diary
before the trial ended: "The historian of the future will look back to [the Nuremberg Trial]
with fascinated eyes. It will have a glamour, an intensity, an ever-present sense of tragedy
that will enthrall the mind engaged upon its consideration."

The official legal citation to the Nuremberg Trial, the most monumental trial of the 20th
century, indeed of all time, is United States v. Goering, 6 F. R. D. 69 (Int'l Mil. Trib. 1946).
https://www.loc.gov/rr/frd/Military_Law/Nuremberg_Indictments.html
http://www.history.com/topics/world-war-ii/nuremberg-trials

Post-World War II Developments

Geneva conventions
After the Nürnberg and Tokyo trials, numerous international treaties and conventions
attempted to devise a comprehensive and enforceable definition of war crimes. The four
separate Geneva conventions, adopted in 1949, in theory made prosecutable certain acts
committed in violation of the laws of war. The conventions provided for the protection of
wounded, sick, and shipwrecked military personnel, prisoners of war, and civilians. Like the
convention on genocide, however, the Geneva conventions specified that trials were to be
arranged by individual governments. In 1977 two protocols were adopted to clarify and
supplement the Geneva conventions. Recognizing that many conflicts were internal rather
than international in scope, the second protocol afforded greater protection to guerilla
combatants in civil wars or wars of “self-determination.”
Rwanda and Yugoslavia war crimes tribunals
Nearly 50 years passed between the Nürnberg and Tokyo trials and the next formal
international prosecution of war crimes. In May 1993, in an attempt to prevent further acts of
“ethnic cleansing” in the conflict between states of the former Yugoslavia and to restore
peace and security to the Balkan region, the United Nations Security Council established the
International Criminal Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in the Territory of the Former
Yugoslavia since 1991, commonly known as the ICTY. In November 1994 the UN responded
to charges of genocide in Rwanda by creating the ICTR, formally known as the International
Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other
Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda
and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in
the Territory of Neighbouring States between 1 January and 31 December 1994.

Bosnian Serb wartime leader Radovan Karadžić awaiting the reading of the verdict at his
International Criminal Tribunal for the Former Yugoslavia trial at The Hague, Netherlands,
March 24, 2016. Karadžić was found guilty on 10 of 11 counts, including responsibility for
genocide committed in the Srebrenica massacre in 1995.
Bosnian Serb wartime leader Radovan Karadžić awaiting the reading of the verdict at …
Robin van Lonkhuijsen—Pool/AP Images

Both the ICTY and ICTR were international in composition, and neither tribunal sat in the
country where the covered conflict occurred; the ICTY was located in The Hague, and the
ICTR was located in Arusha, Tanzania. The tribunals had nearly identical governing statutes
and a common appellate chamber. Although the Nürnberg and Tokyo tribunals were
empowered to impose capital punishment, the ICTR and ICTY could impose only terms of
imprisonment. However, no centralized international prison system was established to house
persons convicted of war crimes before the tribunals.

The governing statutes of the ICTY and ICTR defined war crimes broadly. The ICTY was
given jurisdiction over four categories of crime: (1) grave breaches of the Geneva
conventions, (2) violations of the laws or customs of war, (3) genocide, and (4) crimes
against humanity. Recognizing that crimes against humanity do not necessarily involve a
“nexus to armed conflict” and taking into account legislation specifically enacted by the
Rwandan government, the statute of the ICTR limited the jurisdiction of the tribunal to
Rwandan leaders, while lower-level defendants were to be tried in domestic courts. In both
tribunals rape, murder, torture, deportation, and enslavement were subject to prosecution. The
tribunals thus were among the first international bodies to recognize sexual violence formally
as a war crime.

Like the statutes of the Nürnberg and Tokyo tribunals, the ICTY and ICTR statutes did not
consider the official position of an individual, including his position as head of state, to be a
sufficient basis for avoiding or evading criminal culpability. Accordingly, in 1999 the ICTY
indicted Slobodan Milošević, the Serbian (1989–97) and Yugoslav (1997–2000) president,
for war crimes, and in 2001 he was arrested and extradited to The Hague. Likewise, military
and civilian leaders who knew or should have known that their subordinates were committing
war crimes were subject to prosecution under the doctrine of command or superior
responsibility. Finally, individuals who committed war crimes pursuant to government or
military orders were not thereby relieved of criminal liability, though the existence of the
order could be used as a mitigating factor. Thus, the rules adopted for the Nürnberg and
Tokyo trials continued to influence later efforts to bring suspected war criminals to justice.

Coffins containing the recovered remains of victims of the 1995 Srebrenica massacre in
Bosnia and Herzegovina, July 2008.
Coffins containing the recovered remains of victims of the 1995 Srebrenica massacre in
Bosnia and …
Almir Dzanovic
In 1993 the Belgian legislature passed a controversial law giving its courts the right to try any
individual accused of a war crime anywhere in the world. The law, which resulted in lengthy
prison sentences for two Rwandan nuns found guilty of genocide and in judicial complaints
against many world leaders (including Israeli Prime Minister Ariel Sharon, Cuban President
Fidel Castro, and Palestinian leader Yāsir ʿArafāt), was invalidated by the International Court
of Justice in 2002. The following year the law was repealed by the Belgian government and
replaced by a law requiring that either the victim of the war crime or the accused be a Belgian
citizen or resident. In 1998 in Rome, some 150 countries attempted to establish a permanent
international criminal court; the negotiations eventually resulted in the adoption by 120
countries of a governing statute for an International Criminal Court (ICC) to be located
permanently at The Hague. The statute provided the ICC with jurisdiction for the crimes of
aggression, genocide, crimes against humanity, and war crimes. The court came into
existence on July 1, 2002, and by 2016 the statute had been ratified by some 120 countries;
three of the permanent members of the UN Security Council (China, Russia, and the United
States), however, had not yet approved it. https://www.britannica.com/topic/war-crime

AUSCHWITZ. Dachau. Ping Fan. Changchun. In the shorthand of World War II atrocities,
some names are more recognizable than others.

But while Nazi scientists like Josef Mengele conducted hideous experiments on concentration
camp prisoners, their lesser-known Japanese counterparts, led by Gen. Shiro Ishii, were
waging full-scale biological warfare and subjecting human beings to ghastly experiments of
their own -- and on a far greater scale than the Germans.

''Imagine hundreds of Mengeles,'' said Rabbi Abraham Cooper of the Simon Wiesenthal
Center in Los Angeles, who has been calling on the Japanese to face up to their past as
openly as the Germans have.

Ping Fan, built by General Ishii, the mastermind of Japanese germ warfare and its infamous
Unit 731, was a camp of plague-bearing fleas, rat cages and warrens for human guinea pigs.
Changchun, 150 miles south, was another huge installation for germ tests on plants, animals
and people.

Continue reading the main story

Though not approaching the systematic exterminations by the Nazis, the Japanese record of
atrocities -- what victims call ''the Asian Holocaust'' -- is still producing revelations more than
50 years after the end of World War II. The delay illustrates the West's Eurocentric view of
wartime suffering as well as striking differences in the willingness of the two former Axis
allies to come to terms with their past. It has also thrown a harsh light on cold-war rivalries.
As early as 1949, the Soviet Union convicted 12 Japanese for biological war crimes.
Although the published transcript contained exhaustive details of Unit 731's crimes, the
accounts were largely ignored or dismissed in the West as Communist propaganda. The
Allies did, however, prosecute 5,570 Japanese, but none for biological warfare.

In the early 1980's, American and British scholars and journalists rediscovered the germ war
issue, adding new details of American involvement in covering up the crimes. The story has
since taken on a new momentum and questions of the guilt of Emperor Hirohito persist.
Justice Department officials, unfettered by the State Department, are complaining that the
Japanese are refusing to provide data on suspected war criminals, who would be barred from
entering the country, just as 60,000 Germans and other Europeans are now.
At the same time, a 1997 Japanese lawsuit by Chinese seeks compensation for victims of
Japan's germ warfare. Former members of Unit 731 have been confessing crimes. Chinese
researchers say they keep uncovering new sites where anthrax, typhoid, plague and other
diseases were spread, wiping out perhaps hundreds of thousands of Chinese. Another 10,000
or more Chinese, Russians and perhaps some American prisoners of war as well, researchers
say, were killed in ghoulish experiments.

Japanese officials insist they lack proof, although by other accounts they have sealed wartime
archives returned to them by the American authorities in the 1950's. With powerful right-
wing and militaristic factions long opposed to confessions of wartime guilt, the Japanese
publisher of a translation of ''The Rape of Nanking,'' the 1997 best-seller by Iris Chang (Basic
Books), postponed its publication.

For decades after the war, veterans of Unit 731 and other biological warfare detachments led
Japanese medicine, say scholars like Sheldon H. Harris, emeritus professor of history at
California State University at Northridge, and author of ''Factories of Death'' (Routledge,
1994), on the Japanese germ war program.

It was only in 1992 that the Government officially acknowledged that the Japanese Army
forced several hundred thousand Korean women into prostitution in World War II, and it was
only last year that a Japanese court ordered the Government to pay $2,300 each to three
plaintiffs. By contrast, Germany, in its schools and the press, has dealt unflinchingly with its
past and paid victims reparations now amounting to about $80 billion, with private industry
planning to pay billions more.

JAPANESE accountability for germ war atrocities got lost in the cold war. With the Japanese
surrender in 1945, the Soviet Union and the United States competed to snare General Ishii's
data. The Americans won out, promising immunity from war crimes prosecution.

Bob Dohini, a former lawyer on the United States prosecution team in Tokyo, said recently
he had no idea that the crimes had included germ warfare. In December 1945, he said, he had
carried a top-secret message to the American authorities in Tokyo. ''I assumed it had to do
with the Emperor, because soon after I discovered we were not able to try him,'' he said.

He now calls the decision a big mistake, since revelations have pointed to the monarch's
knowledge of germ warfare. ''I don't think there is any question of the Emperor's guilt,'' he
said.

Write about unit 731 japanese human experimentation site.

Pearl harbour

Article 1 of the 1907 Hague Convention III – The Opening of Hostilities prohibited the
initiation of hostilities against neutral powers "without previous and explicit warning, in the
form either of a reasoned declaration of war or of an ultimatum with conditional declaration
of war" and Article 2 further stated that "[t]he existence of a state of war must be notified to
the neutral Powers without delay, and shall not take effect in regard to them until after the
receipt of a notification, which may, however, be given by telegraph." Japanese diplomats
intended to deliver the notice to the United States thirty minutes before the attack on Pearl
Harbor on December 7, 1941, but it was delivered to the U.S. government an hour after the
attack was over. Tokyo transmitted the 5,000-word notification (commonly called the "14-
Part Message") in two blocks to the Japanese Embassy in Washington, but transcribing the
message took too long for the Japanese ambassador to deliver it in time.[42] The 14-Part
Message was actually about sending a message to U.S. officials that peace negotiations
between Japan and the U.S. were likely to be terminated, not a declaration of war. In fact,
Japanese officials were well aware that the 14-Part Message was not a proper declaration of
war as required by the 1907 Hague Convention III – The Opening of Hostilities. They
decided not to issue a proper declaration of war anyway as they feared that doing so would
expose the possible leak of the secret operation to the Americans.[43][44] Some conspiracy
theorists charged that President Franklin D. Roosevelt willingly allowed the attack to happen
in order to create a pretext for war but no credible evidence supports that claim.[45][46][47]
The day after the attack on Pearl Harbor, Japan declared war on the U.S. and the U.S.
declared war on Japan in response the same day.

Simultaneously with the bombing of Pearl Harbor on December 7, 1941 (Honolulu time),
Japan invaded the British colonies of Malaya and bombed Singapore and Hong Kong,
without a declaration of war or an ultimatum. Both the U.S. and Britain were neutral when
Japan attacked their territories without explicit warning of a state of war.[48][49]

The U.S. officially classified all 3,649 military and civilian casualties and destruction of
military property at Pearl Harbor as non-combatants as there was no state of war between the
U.S. and Japan when the attack occurred.[50][51][52] Joseph B. Keenan, the chief prosecutor
in the Tokyo Trials, says that the attack on Pearl Harbor not only happened without a
declaration of war but also a treacherous and deceitful act. In fact, Japan and the U.S. were
still negotiating for a possible peace agreement which kept U.S. officials very distracted
when Japanese planes bombed Pearl Harbor. Keenan explained the definition of a war of
aggression and the criminality of the attack on Pearl Harbor:

The concept of aggressive war may not be expressed with the precision of a scientific
formula, or described like the objective data of the physical sciences. Aggressive War is not
entirely a physical fact to be observed and defined like the operation of the laws of matter. It
is rather an activity involving injustice between nations, rising to the level of criminality
because of its disastrous effects upon the common good of international society. The injustice
of a war of aggression is criminal of its extreme grosses, considered both from the point of
view of the will of the aggressor to inflict injury and from the evil effects which ensue ...
Unjust war are plainly crimes and not simply torts or breaches of contracts. The act comprises
the willful, intentional, and unreasonable destruction of life, limb, and property, subject
matter which has been regarded as criminal by the laws of all civilized peoples ... The Pearl
Harbor attack breached the Kellogg–Briand Pact and the Hague Convention III. In addition, it
violated Article 23 of the Annex to the Hague Convention IV, of October 1907 ... But the
attack of Pearl Harbor did not alone result in murder and the slaughter of thousands of human
beings. It did not eventuate only in the destruction of property. It was an outright act of
undermining and destroying the hope of a world for peace. When a nation employs a deceit
and treachery, using periods of negotiations and the negotiations themselves as a cloak to
screen a perfidious attack, then there is a prime example of the crime of all crimes.[53][54]

Admiral Isoroku Yamamoto, who planned the attack on Pearl Harbor, was fully aware that if
Japan lost the war, he would be tried as a war criminal for that attack[full citation needed]
(although he was killed by the United States Army Air Forces in Operation Vengeance in
1943). At the Tokyo Trials, Prime Minister Hideki Tojo; Shigenori Tōgō, then Foreign
Minister; Shigetarō Shimada, the Minister of the Navy; and Osami Nagano, Chief of Naval
General Staff, were charged with crimes against peace (charges 1 to 36) and murder (charges
37 to 52) in connection with the attack on Pearl Harbor. Along with war crimes and crimes
against humanity (charges 53 to 55), Tojo was among the seven Japanese leaders sentenced
to death and executed by hanging in 1948, Shigenori Tōgō received a 20-year sentence,
Shimada received a life sentence, and Nagano died of natural causes during the Trial in
1947.[44][55]

Over the years, many Japanese nationalists argued that the attack on Pearl Harbor was
justified as they acted in self-defense in response to the oil embargo imposed by the United
States. Most historians and scholars agreed that the oil embargo cannot be used as
justification for using military force against a foreign nation imposing the oil embargo
because there is a clear distinction between a perception that something is essential to the
welfare of the nation-state and a threat truly being sufficiently serious to warrant an act of
force in response, which Japan failed to consider. Japanese scholar and diplomat, Takeo
Iguchi, states that it is "[h]ard to say from the perspective of international law that exercising
the right of self-defense against economic pressures is considered valid." While Japan felt
that its dreams of further expansion would be brought to a screeching halt by the American
embargo, this "need" cannot be considered proportional with the destruction suffered by the
U.S. Pacific Fleet at Pearl Harbor, intended by Japanese military planners to be as
comprehensive as possible.

1. Martin V. Melosi, The Shadow of Pearl Harbor: Political controversy over the Surprise Attack,
1941–1946, 1977
2. Gordon W. Prange, etc. al, At Dawn We Slept, 1991
3. Gordon W. Prange, etc. al, Pearl Harbor: The Verdict of History, 1991
4. Yuma Totani (April 1, 2009). The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of
World War II. Harvard University Asia Center. p. 57.
5. Jump up^ Stephen C. McCaffrey (September 22, 2004). Understanding International
Law. AuthorHouse. pp. 210–29.

This article reflects a recent convergence of research interests among transnational historians and
legal scholars.[1] It draws attention to changing forms of international law at the foundation of a
new internationalism of sentiments, organizations, and activism beginning around the mid-19th
century. In this framework, the Hague Conferences of 1899 and 1907 were pivotal moments in the
long 19th century, in the effort to both regulate states’ war-making authority through the
codification of binding international laws and to create permanent institutions and organizations for
their implementation and oversight.

The article opens in 1899 at the First Hague Conference, capturing the dynamic social worlds that
gave rise to these new patterns of cooperation and negotiation in international society. It then
assesses the social-historical contexts for two models of the laws of war, known today for the
location of their founding congresses: the Geneva model (protecting categories of individuals at
risk in wartime) and the Hague model (limiting the state’s methods and means of waging war).
The final section examines the values underpinning the laws that were also institutionalized in
new intergovernmental organizations in international society. Methodologically, the article
examines law-making as a dynamic but contingent process, which sets the formulation and
revision of law at international congresses in their wider societal and geopolitical contexts. In this
way, it addresses the conflict of interests among and between states and peoples that limited the
full impact of the laws.
2 Conciliating War’s Necessities with the Laws of Humanity↑

In May 1899 representatives of twenty-six sovereign states converged on the House in the
Woods, the Dutch royal family’s summer residence in The Hague, to hammer out a series of
international laws and declarations designed to control states’ war-making activities (see
photograph). Comprising a total of 100 formal delegates, the members included well-known
figures in diplomatic service, high military and naval officers, among them representatives of
states’ military medical corps, prominent politicians, and a sizeable contingent of lawyers
specializing in the new field of international law (see photograph). Not surprisingly, given the
geopolitical balance of power at the time and the congress’ location in the Netherlands, European
states dominated the diplomatic gathering. Of course, in this era of imperial rivalry and a costly
arms race, there were many serious divisions among them, including political status as great or
small powers, and divergent orientations toward land or sea warfare.

The congress, however, was partly a global affair, reflecting a newly emerging international order
of states. The Ottoman Empire, which had become a recognized European power by treaty law in
1856, sent eight delegates. The Persian Empire was represented as well. Two countries from the
Americas also had delegations: the United States and Mexico (Brazil declined to attend). Japan
had a visible presence with seven delegates. Indeed, since the Meiji restoration in 1868, which
had set the country on a course of social and economic modernization following Western
European patterns, Japanese leaders had been using the language and principles of treaty law to
affirm the country’s place and prominence among the great imperial powers. In addition, there
were representatives from China, nominally sovereign and independent, and also Siam
(Thailand).

At a follow-up conference – the Second Hague Conference in 1907 – the number of sovereign
states in attendance rose to forty-four and the delegations now included all Latin American
countries except Costa Rica and Honduras, and a number of new European states from former
Ottoman territories. Otherwise, there was remarkable continuity in the social profile and
occupational expertise from the First to the Second Conference. For a growing number of
internationally-minded reading publics, both gatherings were gripping political and social
events.[2]

And no wonder. The first Hague Conference brought together, as an integrated package, a set of
ideas and principles that had been swirling around in global civil society for at least the past thirty-
five years: peace, arbitration, disarmament, humanitarianism, and projects to codify the laws of
war (see external link). Some of the visions, such as peace or humanity, admittedly had a much
older pedigree, but they had become intertwined with international law-making practices placed in
a new direction after the Crimean War (1853-1856) with a declaration of maritime law (1856). The
law innovatively allowed states not part of the original agreement to accede to it. International law
was being written down, thus achieving a permanent status. It was also becoming more open, and
thus universal – at least in principle – to its defenders. The work of the new group of
professionalizing international lawyers, so prominent at the Conference, reflected a firm belief in
law’s ability to bring order out of disorder and curb power through the establishment of accepted
rules and regulations that would govern international ties among states. It seemed to serve, in the
language of the day, the “ever progressive needs of civilization.”[3]
Beyond the codification movements, the Hague agenda expanded the meaning of war-controlling
actions to include proposals for disarmament and methods of arbitration to settle disputes among
states. A linkage of disarmament and peace had been at the heart of the Russian Foreign Minister
Count Michail Mouravieff’s (1845-1900) call, which had set the Hague process in motion in the
first place. Addressing all states with diplomatic representation at St. Petersburg, his 1898 circular
juxtaposed the “maintenance of the general peace” with a “possible reduction of the excessive
armaments which were burdening all nations.” Widespread skepticism and silence in the
diplomatic corps forced Mouravieff to broaden the call to seven additional items, ranging from
prohibitions of certain types of weapons and modes of destruction to regularizing good offices and
arbitration practices. Although central to the original Russian initiative, the proposal to prohibit
“any increase of the armed forces” beyond their present numbers was the least successful item on
the agenda. It ran up against states’ collective understanding of their own vital national interests at
play at every phase of negotiation. Most delegations would not agree to any regulated formula or
method of arms reductions, rendering the concept an empty wish. The Final 1899 Act noted only
that “restrictions of military charges, which are at present a heavy burden on the world, [are]
extremely desirable for the increase of the material and moral welfare of mankind.”[4] Reducing
armament levels was not even on the formal agenda of the Second Hague Conference.

That left outstanding the effort to establish common and uniform procedures and institutions for
arbitration, a diplomatic practice which, like international law-writing, had also been gathering
steam through successful implementation over the past several decades. New notions, such as
the idea of peace through compulsory arbitration (arbitrage obligatoire), were advanced in France,
for example. From the 1890s, this principle was associated with important reform politicians, such
as Léon Bourgeois (1851-1925), as well as activists, notably Frédéric Passy (1822-1912) and
Charles Richet (1850-1935), who founded and headed a French organization promoting
arbitration. In 1899, Bourgeois served as president of the Third Commission at The Hague that
was tasked with drafting laws to settle international conflicts peacefully.[5]

Multilateral traditions among inter-American states, described by historian Greg Grandin as “a

kind of American international law,” took the lead in the process. The tradition was forged by
Central and Latin American leaders and jurists and focused on the principles of nonaggression
and international arbitration.[6] These ideas most directly impacted the work of the Second Hague
Conference, given the multitude of delegations from the Americas, although they did not
necessarily speak with one voice.

In addition, the U.S. and Great Britain had been the most active sponsors of arbitration, inserting
arbitral agreements and tribunals into treaty law. These efforts were tangible and relatively
successful. The number of arbitral settlements had risen steadily since mid-century: by 1860,
there were twenty-five agreements; between 1861 and 1880, the number rose to fifty-four; and in
1900, it reached a record of 111. In fact, many of the international lawyers at the First Hague
Conference had been involved in settling disputes through arbitration. Most prominent among
them was the Russian Feodor Fedorovich Martens (1845-1909) who, during the First Hague
Conference, traveled repeatedly to and from Paris to head the Venezuelan Arbitration Court,
which was negotiating a river basin border (see photograph). Like Martens, these lawyers brought
their firsthand expertise to the Hague deliberations. In a further step, which intertwined arbitration
and law, jurists and delegates were also coming to acknowledge arbitration as the most “effective”
and “equitable” method of interpreting the new corpus of binding international law that was being
codified simultaneously.[7]

These interstate methods of settling disputes peacefully were followed actively – and purposefully
promoted – by many different groups in transnational civil society, reflecting growing international
sentiments and transnational contacts that put their stamp on the later decades of the long 19th
century. Transnational and cosmopolitan ties and sentiments coexisted and intersected with
admittedly pervasive and hardening nationalist and militarist identities.[8] Foremost among these
activist networks were the peace movements. Toward the end of the century, hundreds of peace
societies were founded throughout the world; so diverse were their membership and visions that
in 1891 the groups formed an International Bureau of Peace, headquartered in Berne,
Switzerland. The bureau published an annual Yearbook to keep track of the “peace work around
the world.” Many of these groups actively popularized ideas in national societies such as
international solidarity, compulsory arbitration, restrictions of armaments, and beliefs in a
permanent court to insure world peace.

The peace movements, broadly conceived, spawned two distinct international organizations with
overlapping membership that helped facilitate the exchange of information at The Hague. One
was the epistemic community of international lawyers who, in 1873, founded the Institute of
International Law. The institute was a scientific body comprised exclusively of experts offering
studies on practical challenges emerging in the new field of international law. Over the decades,
its member wrote influential treatises on the laws of war (see external link). However, these
compendia were also authored by leading military officers and diplomats of the day, reflecting the
same intertwining of personnel that crafted new law at The Hague.

Professional lawyers shared a deep commitment to law as a prelude to an international order

based on peace but, as professionals, distanced themselves from the peace societies. They
claimed that their “collective scientific action” provided an alternative mode of intervention
between those defending the rightness of war and the “utopians” championing a perfect peace.
They, too, did not speak with one voice, but brought conflicting national and regional legal
traditions and interests to the Hague negotiations. This reflected disagreements over arbitration
(pitting German against French lawyers), the right of occupation and legitimate resistance
(reflecting tensions between great and small European states), and neutral obligations on territory
controlled beyond borders (a sore point for Japanese lawyers arising out of the Russo-Japanese
War, 1904-1905). After 1899, the gap between lawyers and peace society members widened.

A second influential organization in civil society was the Interparliamentary Union founded in
1889. It coordinated parliamentarians, originally from France and Britain, who were pushing for
arbitration treaties with the United States. The group expanded to embrace popular national
representatives in practical efforts to safeguard peace. Committed to concrete steps just like the
lawyers, Union members drafted statutes for a permanent international arbitral court that was
brought to The Hague in 1899, among other interventions into law. Equally importantly, its
membership’s transatlantic ties helped insure the call for a Second Hague Conference. Yet many
members simultaneously were skeptical of the work at The Hague, rightly seeing it as a reflection
of interstate power and interests, insufficiently attuned to the people’s interests. In turn, Hague
conferences spurred the group to adopt more organizational cohesion and new strategy.[9]

These initiatives seemed to reflect a new idea that ordinary people could impact policy
deliberations on topics as grave as war and peace. In an affirmation of the principle, hundreds of
peace advocates, including one of the luminaries of the movement, the Baroness Bertha von
Suttner (1843-1914), and sponsors of other causes and campaigns, descended on The Hague,
accompanied by a host of reporters and journalists determined to cover the events. At both Hague
conferences, von Suttner’s residence became a hub of meetings and exchanges for delegates
and representatives of civil society groups. Von Suttner had risen to international prominence with
the publication of her widely translated antiwar novel, Lay Down Your Arms (Die Waffen nieder),
published in 1889.[10]
The presence of so many peace advocates during the months of deliberations gave the Hague
movement the enduring, although inaccurate label “Peace Conference.” A 1910 encyclopedia
entry similarly concluded that peace, once absent from the purview of international law, had now
become an object of study, with methods and procedures spelled out nearly as precisely as those
governing the conduct of war. The presence of so many interested lay parties, however, created a
dilemma for the official delegates. As high government and military officials, they understood that
they could not fully flaunt the “public opinion” now weighing into foreign affairs. No country could
be seen to disregard at will the practices of “civilized” states and the “public conscience.” Yet, as
officials and professionals, they were deeply skeptical of the newfangled notion of public opinion.
One of the first acts of both conferences was to close the deliberations off to the public.[11]

Objects of deep contemporary interest, the Hague Conferences, as it turns out, were pivotal in
shaping the organization of international life and law far into the future. In 1899, diplomatic
conferences of large and small states were rare occurrences, as were agreements establishing
permanent international organizations and bodies. Both are prominent features of international
society and life today. In addition, the Hague work of codifying the laws of war has served as a
lasting foundation for what is known as international humanitarian law, a subset of international
law applied to the treatment of individuals in armed conflicts (the Geneva model) and to the
methods and means of warfare (ius in bello), proposing limits to the way force may be used (the
Hague model).

In a reversal of nomenclature, but not substance, today’s international humanitarian law centers
on the revised Geneva Conventions of 1949 and 1977. But in the late 19th century, The Hague
was the paradigmatic conference seeking, in its own language, to reconcile war’s necessities with
the laws of humanity (as well as the necessities of commerce with wartime). Its study helps
provide, in Akira Iriye’s compelling conception, a counter narrative to a history that wrote the
coming of war in Europe in 1914 as inevitably following a “predetermined...road.” The cumulative
effort to curb war’s excesses and promote peace was as central to the construction of the later
19th century international order as war itself.[12]

3 International Humanitarian Law: The Geneva Model↑

By the 1860s, a discourse of humanitarianism had returned to global society, tied squarely to
war’s human costs. In earlier decades, humanitarian sentiments had animated the transatlantic
anti-slave trade and abolition movements, which purposefully harnessed the Enlightenment
concept of common humanity for their causes. The cause of abolition spread the language of
humanity far and wide.[13] But, now, a growing number of philanthropic figures and educated
people became concerned with the plight of wounded soldiers on the battlefield. While not absent
from the global scene, wars had been relatively scare on the European continent since the
Napoleonic era.

With the spread of nationalist territorial demands and identification with minority, often Christian,
communities in Ottoman lands, wars returned as standard political contests. News concerning the
Crimean War (1853-56), the campaigns for Italian unification (1848-70), the German wars of
unification (1864-71), and even the U.S. Civil War (1861-65) was avidly sent across the seas
through telegraph communication and new wartime journalism. But the nature of warfare had
changed. Gone were the old regimes’ mercenary armies, along with their extensive medical
provisioning. With conscript armies, commanders believed they could replace soldiers easily
rather than invest in their health and recovery. Yet in this era of people’s wars, a soldier was
someone’s husband, father or brother. The new context helps explain the mounting public interest
in war’s casualties, the perceived need by authorities and military officials to attend to public
opinion in wartime, and a growing sense of the soldiers’ fate as a common human link
transcending geographical borders. Convergence of these complex sentiments helped establish
new international organizations and write new international laws.

The lead, as it turns out, was taken by Henri Dunant (1828-1910), a Swiss businessman whose
travels serendipitously brought him to Solferino in northern Italy in June 1859, the place of a
decisive battle in the struggle for Italian unification. What Dunant saw on the battlefield haunted
him: 30,000 wounded soldiers of both military camps dying after the battle because of inadequate
medical attention. Returning to Geneva, he wrote a scathing account entitled A Memory of
Solferino, which he self-published in 1862 as an “open letter to world leaders and opinion makers”
(see photograph). He then sent it to Europe’s dynastic courts, prominent military leaders, doctors,
writers and philanthropists. The book became an instant success and was quickly translated into
seven European languages (see photograph). With its searing details of horror and misery, it
effectively evoked humanitarian sentiments, creating immediate, visceral connections between
distant readers and his symbol of suffering humanity, the wounded enemy soldier. But unlike the
workings of humanitarianism in the anti-slavery campaigns, which rarely envisioned the slave as a
human being with rights, Dunant tied his vision to a legal regime, which his movement helped
create.[14]

The key to Dunant’s success were two innovations. The first was a proposal for permanent
voluntary relief associations formed and trained in peacetime and designed to supplement states’
military medical corps in wartime. The second was treaty law protecting those persons hors de
combat – at the outset, the wounded soldier of any nationality and those offering medical relief
and religious succor. His proposal found consistent support among high government and military
authorities and worked, ultimately, because different governments around the world officially
recognized the volunteers. While in origin a masculine project (although not understood as such)
with its attention on the male citizen-soldier, it found ardent support among women. These women
were initially female dynasts in the courts of Europe and privileged women in women’s patriotic
relief societies, which had worked since the French Revolution to aid veterans of the revolutionary
(and subsequent) wars, as well as the poor and destitute in urban societies. Typically under
dynastic patronage, these organizations were readily remolded to meet Dunant’s
specifications.[15] Ad hoc relief efforts had also emerged organically in the Crimean War and
Italian campaigns.

Dunant’s ideas, then, were turned into action, resulting in the calling of two conferences. Both took
place through the efforts of a small Geneva philanthropic society, the Geneva Public Welfare
Society, which became the International Committee of the Red Cross (ICRC) in 1875 (see image).
One of its members, the lawyer Gustave Moynier (1826-1910), had seen Dunant’s book and
adopted his cause as the Society’s cause. Under its own authority, the Swiss group called
together interested parties for a three-day conference in late October 1863 to coordinate the
founding of relief associations. It turned itself into a Central Committee to prepare guidelines and
coordinate the necessary exchange of information. Thirty-six people attended. Eighteen were
government representatives from fourteen states who reported back home on the deliberations,
preparing the ground for further action. The rest were members of charitable organizations and
interested individuals. Importantly, as pointed out in one of Dunant’s earlier circulars, battlefield
medical relief work – a self-proclaimed humanitarian project to aid all wounded soldiers by the
state’s revitalized military medical corps or by volunteers – required protection under a universally
recognized sign of neutrality. Delegates made that symbol the red cross, inverting the colors of
the Swiss flag ostensibly to honor their hosts.

With a seeming logic, a second conference – a diplomatic conference called by the Swiss Federal
Council – met in August 1864. This one was attended solely by European states. Invitations had
also been extended to the Sublime Porte (the Ottoman Empire), the United States, Mexico and
Brazil. Following a proposal prepared by the Central Committee, delegates debated, drafted, and
signed the Geneva Convention on 22 August 1864; within four months, the Convention had been
ratified by ten states and became binding international law. True to the new spirit of international
law, Article 9 allowed states not present to accede to it.[16]

At the outset, the Geneva Convention had a limited purview, providing legal protection for
wounded soldiers and the medical personnel working in the mobile military hospitals and
ambulances on the battlefield. But it established new precedents, making rights and protections
for categories of people in wartime a matter of international agreement; rights no longer were the
sole preserve of constitutional arrangements. In time, its protections also came to define prisoner
of war status and create ad hoc clearinghouses for the exchange of information on prisoners
during wartime, a task eventually taken over by the ICRC. Codes, too, sought greater clarity on
the status of the nonbelligerent – the civilian in wartime.

However, difficulties emerged immediately, unsettling the law from the start. The Ottoman Empire
adhered to the Convention one year later but, in principle, refused to accept the cross, seeing it
not as a neutral sign but as a Christian symbol deeply upsetting to Muslim sensibilities. At all
subsequent law-writing congresses prior to 1914, Ottoman representatives demanded parity for
the red crescent to reflect the Muslim identity of the dynastic house ruling over its complex multi-
ethnic and religious empire. At times, they were supported by Persian and Siamese delegations.
In addition, in all of its subsequent wars, the Russo-Ottoman (1878), Tripolitanian (1911-12) and
Balkan wars (1912-13), Ottoman authorities imposed a compromise on the ground: they
demanded and achieved reciprocal recognition of cross and crescent for the duration of each war.
Formal legal acknowledgement of the red crescent had to wait until the revised Geneva
Convention of 1929.[17]

Equally unsettled, ironically, was the role of the volunteer Red Cross (and Crescent) societies at
the heart of Dunant’s vision. In 1864, military leaders balked at recognizing a place for volunteers
on the battlefield and excluded them from the legal safeguards. But the founding of national
wartime relief societies continued apace; increasingly coordinated by government and military
regulation, their wartime services, tested first in the Prussian-Danish war of 1864, became
indispensable to states’ overall defense agendas. In their many national publications and reports
of activities in the local press, furthermore, they spread the word about the successes of their
humanitarian undertaking. Drawing on an accumulating record of practical wartime experiences,
Red Cross leaders and personnel also were among the most active in transnational society
pushing for revisions of the Geneva Convention. Prodded by the Central Committee, a first step
was taken already in 1868, clarifying, for example, the medical services required under enemy
occupation and, significantly, extending its provisions to naval warfare. This draft convention,
however, was never ratified, leaving the revision work to a later day.

The unfinished work of Geneva was immediately relevant to the overall agenda of the Hague
Conference in 1899, where participants were determined to convert the existing practices,
customs, and laws of war into a broader written code. Here, leadership of the international Red
Cross movement played a formative, if not purposeful, role, helping incorporate the Geneva
Convention into the Hague instructions wholesale through Article 21. It read in part that “the
obligations of belligerents with regard to the sick and wounded are governed by the Geneva
Convention.” The same language showed up in 1907. The ICRC was determined to maintain
control over the effort to revise the Geneva Convention, however, inserting a “wish” in 1899 (a
formal diplomatic statement about a future course of action, which typically reflected states’
inability to resolve a controversy) that a special conference “might be summoned by the Swiss
Government” for the revision of the Geneva Convention. That diplomatic meeting took place in
June 1906 between the First and Second Hague conferences. It was then that the personnel of
the national Voluntary Aid or Red Cross societies became fully protected under international law
(see photograph).[18]

4 International Humanitarian Law: The Hague Models↑

Dominated by international lawyers, the second working commission at The Hague in 1899 was
tasked with preparing a written code on the laws of war on land. They drafted Convention IV on
The Laws and Customs of War on Land. Its task was relatively straightforward although, as it
turned out, deeply controversial in matters of military occupation and people’s resistance to it. The
lawyers and diplomats had a wide range of written precedents to draw on, including, importantly,
the Lieber Code promulgated during the U.S. Civil War (1863); the Petersburg declaration
proscribing the use of certain types of weapons in war (1868); and a draft statement on the laws
of war adopted in Brussels on 27 August 1874, which had never been ratified. Furthermore, the
new international law institutes had been gathering materials and publishing on the topic. They
had developed their own consensus positions, which they made available to the delegates.[19]

The equivalent commission expanding the codification work at the Second Hague Conference in
1907 had a more difficult task. While delegates rewrote some aspects of the 1899 treaty law on
land warfare and sharpened legal definitions of the rights of neutral powers and property in
wartime, their main charge centered on codifying the laws on warfare at sea, seeking in part to
secure international commerce against the “surprises of war.” These topics included the legality of
converting merchant ships to warships, definitions of effective blockade, lists of contraband, and
prize law. These were only a few of the many areas that formed “long subject[s] of deplorable
disputes,” in the words of the British international lawyer Alexander Pearce Higgins (1865-1935).
Higgens translated and compiled the full texts (with commentary) of the most important
components of the laws of war prepared at international conferences from 1856 to 1909 for his
students (see the work).

In seeking agreements on maritime law in wartime, delegates in 1907 had very few written laws to
draw on. No significant piece of legislation for war at sea had been agreed on since the 1856
Declaration of Paris, which sought to reconcile differing practices (a continental and an Anglo-
American tradition) on capturing enemy goods (on privateering and effective blockage), which had
come to light during the Crimean War. Given the “divergent views and practices” that continued to
separate delegations, the Second Hague Conference failed to resolve many issues of sea
warfare, notably the continuously thorny matters of prize law.[20] In an important new step,
however, the delegates reached an agreement to establish an International Prize Court
(Convention XII) as a court of appeals. This replaced the existing prize law mechanism, which
relied on differing national legal traditions, with a uniform international procedure. It left unclear
which laws would govern the Court’s judgments, however.

As a seemingly logical next step in law-writing, the British government called for another
conference to address the legal lacunae left over from the Second Hague Conference. This
gathering met in London from 4 December 1908 to 26 February 1909. It deviated from the
innovative precedents set by the Hague Conferences. These had been diplomatic meetings of
small and great powers, reflecting the principle (however fictive) of the fundamental equality
among sovereign states in international society. Each delegation, no matter its size, had one vote
only and agreement had to be unanimous. By contrast, in London, the Great Powers (Britain,
France, Germany, Austria-Hungary, Italy, Russia, Japan and the United States), together with
Spain and Holland, wrote the law themselves. The 1909 document, known as the Declaration of
London, established an international law of prize. Ironically, in 1911 the British House of Lords
rejected the bill, fearing its contraband rules favored a continental naval power like Germany. The
law remained unratified, although its provisions guided Ottoman and Italian practices during the
Turco-Italian war.[21]

Throughout the Hague deliberative processes, international lawyers and diplomats debated the
finer points of law and all manner of terms and specificities. Despite attention to detail, the
codification movement could not keep up with the pace of technological and socioeconomic
change around it. Just when it banished certain types of weapons, as declared at St. Petersburg,
new classes of armaments were manufactured; just as it sought to proscribe the dropping of
projectiles and explosives from balloons, the bomber was waiting in the wings. Similarly, its
ongoing effort to precisely differentiate the distinct categories of belligerents from civilians was
thwarted by industrial warfare, which soon blurred the lines.

And yet, in its distinctive blend of law and ethics, it laid down lasting principles for the waging of
war. In tandem with the humanitarian side of Geneva law, the Hague model contributed three
additional modes of moral restraint that have endured, even when admitting the deeply
problematical relationship between law and practice. First, its principles set limits to the means of
waging war (an early version of arms control, which, if it did not successfully ban targeted
weapons, at a minimum restricted their use.) Second, the Hague architects wrote a code of
conduct for war. Third, they reaffirmed the relevance of international customary law even in the
absence of a formal, positive code of law.

In the process, the codes also defined war for the purposes of the law they were writing.
Reflecting limitations in the universal vision, warfare was defined as international war between
“civilized” states alone – that is, between sovereign states that, in circular fashion, affirmed their
civilized status by adhering to the law. This understanding exempted from the laws’ safeguards
the bitter struggles waged by colonial peoples against the forces of imperialist impositions that
were accelerating later in the 19th century. Many of these wars were taking place precisely
around the time of the Hague Conferences: the Philippine rebellion against the United States
(1899), the Boer War in southern Africa (1899-1902), the European intrusion into China during the
Boxer rebellion (1900-01), and the German government’s vicious campaign against the Herero
and Nama peoples in its main settlement colony of Southwest Africa (Namibia) (1904-07). Bowing
to Great Power claims, these wars were seen as internal matters of the various empires and
therefore outside the jurisdiction of international law. In a similar vein, when the Chinese delegate
Lou Tseng-Tsiang (1871-1949) called for clarification of the definition of “war” at the Second
Hague Conference – alluding to the invasion of China by the imperialist powers under the verbal
subterfuge of “expedition” – he was pointedly ignored.[22]

The Hague conventions put forward the important concept of limiting warfare, even though they
reflected a narrow definition of “war.” Article 22 offered a concise statement of the principle. It
says, “[t]he right of belligerents to adopt the means of injuring the enemy is not unlimited.” The
convention’s instructions listed a series of actions in wartime that contravened this principle,
prohibiting, for example, the use of certain types of modern technology (among them, the hollow-
point bullets, explosive projectiles and poison gases). They forbade “treacherously” killing or
maiming the enemy or destroying enemy property, towns, villages or buildings – acts that were
seen to bring “excess” suffering to soldiers and civilians alike. Here, they drew on the sentiments
of St. Petersburg, which had asserted that the “only legitimate object which States should
endeavour to accomplish during war is to weaken the military forces of the enemy.” Seeking to
prohibit all other actions that resulted in “excess” suffering, the architects used law to open up a
new humanitarian sphere of protection where, in their emblematic formulation, the “necessities of
war” were expected to “yield to the requirements of humanity.” Other articles also governed
military authority over an occupied territory.
Major disagreements, notably over the status of civilian insurgency in occupied lands, threatened
to derail the work of the Second Commission in 1899. The statesmen from the smaller states,
particularly Holland and Belgium, wanted a right of resistance to military occupation, drawing on
traditions of peoples’ militias; representatives of the larger states, particularly imperial Germany,
wanted to declare civilian armed resistance illegal under all circumstances. To handle these
issues and overcome the impasse on civilian insurgency, Fedor Martens, the prominent Russian
lawyer, proposed a compromise. Known as the Martens Clause, it was inserted into the Preamble
of the 1899 Convention (IV). The passage reads in part, “[u]ntil a perfectly complete code of the
laws of war is issued, the Conference thinks it right to declare that in cases not included in the
present arrangement, populations and belligerents remain under the protection and empire of the
principles of international law, as they result from the usages established between civilized
nations, from the laws of humanity, and the requirements of the public conscience.” The clause
suggests that behaviors not explicitly prohibited by treaty law may not be permitted because they
contravene these higher “laws.” Its ethical norms have guided the operation of international
humanitarian law ever since.[23] In a further innovation, the revised 1906 Geneva Convention and
the Hague Convention concerning land warfare in 1907 included the first statements about
accountability for violations of the laws. Article 28 of the Geneva Convention enjoined states to
pass legislation forbidding the “pillage and maltreatment” of the wounded, should the prohibition
be insufficiently covered in the state’s military code. Article 3 of the Hague Convention warned
belligerent parties that violators of its code “shall, if the case demands, be liable to pay
compensation.”

5 International Arbitration and Institution-Building↑

Equally important, the work of the Hague Conferences matched law with concrete institution-
building in international society. In this sense, it fit into the new internationalism that stressed the
values of cooperation and interdependency and sought their realization in durable institutions.
Toward the end of the 19th century, states were using treaty law to create standing
intergovernmental organs to oversee many areas of mutual concern. Among the first problems
targeted were the need for standardized weights and measures, uniform postal and telegraph
rates, and quarantine protocols to contain the spread of communicable diseases such as cholera
and the plague. Thus, for example, in 1865 treaty partners established the International Telegraph
Union and in 1874 they created the Universal Postal Union, with its headquarters in Berne,
Switzerland.

Similarly, the First Hague Conference turned the values and diplomatic practices of “mediation”
and “arbitration” into a permanent mechanism for arbitral settlement. This step produced the
Convention for the Pacific Settlement of International Disputes (I) and subsequently, its revisions
and addendums in 1907. Publicity about the initial agreement in 1899 elicited much contemporary
excitement, seemingly justifying the public expectations for peace. As binding law, the signatory
powers agreed to use their “best efforts” to insure a peaceful settlement of international
differences. Prominent lawyers at the time, too, saw it as the “great … marker of international
progress.”[24]

The Hague Convention I was a complex agreement that had a number of parts involving different
methods of arbitration: good offices and mediation (title II), international commissions of inquiry
(title III), and international arbitration as such (title IV). Many techniques had already been part of
diplomatic parlance, such as the statements by the Congress of Paris in 1856, which called on the
disputing states to use, “in so far as circumstances would allow,” the “good offices of a friendly
Power.” Not surprising, then, that the members of the Third Commission writing the Convention in
1899 reached consensus relatively swiftly on many aspects of the new law, including the
parameters of good offices, the procedures for international commissions of inquiry which,
notably, allowed states to exempt matters they considered vital to their national interests and
honor, and the details for the agreement (compromis) states prepared before sending a case to
arbitration.

In heated dispute, however, was the proposal to establish a Permanent Court of Arbitration with a
standing international bureau to oversee the court’s operations. Such a court had not been part of
the original call by the czar’s minister; his agenda only mentioned settling minor quarrels and
raised the possibility of compulsory arbitration for specific matters involving transoceanic canals
and international rivers. Proposals for a continuously sitting court soon entered the agenda, and,
as one delegate noted wryly, “things were getting serious.” While most delegations opposed
compulsory arbitration as an undue challenge to state sovereignty, the imperial German
government objected to a permanent court and even a permanent bureau. Such a step, argued
Georg Münster von Derneburg (1820-1902), head of Germany’s delegation, was nothing but
“troublesome professors interfering with diplomacy.” [25] The German representatives threatened
to withdraw from further negotiations; diplomatic pressure forced a compromise. While called a
“permanent” court, the arbitral body did not sit continuously, but was called into session as
needed; however, its international bureau became permanent and was strengthened by the
authority to encourage arbitration when disputes broke out (see external link).

Part of the agenda for the Second Hague Conference called explicitly for “improvements” on the
arbitral convention that had come to light in the actual practice of “The Hague Court,” as
international jurists began calling it. Between the First and Second Hague Conferences, the
Permanent Court had adjudicated four cases. In addition, a Commission of Inquiry had also been
called that successfully resolved a dispute in 1904 between Britain and Russia, which had for a
time threatened war. There had also been over thirty-three bilateral arbitral agreements in which
states took on the obligation to use arbitration – as far as possible. 1907, then, seemed a
propitious time to begin work to strengthen the bases of arbitration. Besides, two additional and,
from the controversies they invoked, bold proposals were also floated. Both originated in the
Americas, reflecting the distinct regional contribution to international legal discourse, if not to
newly defined jurisdictions.

One of the cases had a noteworthy origin. Its direct antecedent came from a verdict reached by
the Permanent Court on 22 February 1904 in a dispute between Great Britain, Germany and Italy
against Venezuela. Because of claims on public debt bonds by their nationals, the three European
powers had blockaded and bombarded Venezuelan ports in 1902. Immediate protests gave rise to
two interconnected legal doctrines. The Drago Doctrine, named for Argentina’s foreign minister,
Luis Mario Drago (1859-1921), stated that public debt cannot lead to intervention; the Calvo
Doctrine, named for the prominent South American jurist Carlos Calvo (1824-1906), required that
foreign claimants on debt must use all local remedies before turning to their national governments
for redress. These principles reflected a fear that otherwise, stronger states would threaten to
collect debt by force. The issue was discussed as a measure to reduce conflicts between the
states at the Third Pan-American Conference in Rio de Janeiro in July 1906, which then called on
the upcoming Hague Conference to take it up.

The final outcome, Convention II on The Limitation of the Employment of Force for the Recovery
of Contract Debts, proved disappointing for most Latin American delegates, who offered
dissenting reservations on its provisions. Establishing compulsory arbitration for the collection of
public loans and contractual debt, it actually protected foreign financial investments by ensuring
redress through international arbitral and not national judicial systems. The second distinctly new
proposals came from the U.S. delegation, which called for the creation of a second court, the
Judicial Arbitration Court, to supplement the Permanent Court. It was to be a judicial body, with
permanent judges (although called arbitrators) deciding legal matters with reference to its own
precedents. It had the potential to develop a consistent body of case law in the international field.
The idea floundered on tensions between the powerful and weaker states because no agreement
could be reach on how to choose judges for the court. It only showed up as a “wish” for the
future.[26] Despite hopes for significant revision, the arbitral system created at The Hague
remained embedded in geopolitical power calculations, assuring its operation only when the
states agreed to it. However, precedents set by the Hague arbitral mechanisms echoed later in
the work of the Permanent Court of International Justice of the League of Nations.

6 Conclusion↑

In the second half of the long 19th century, through negotiated rules and regulations, international
law and its attendant institutions entered into the international order dominated by sovereign
states, unequal power, and conflict of interests. Debates about the nature and extent of war-
making were central to this new order, which increasingly brought state authorities into formal
consultations to address their areas of mutual concern. Preceded by the Geneva Conference and
other international law-writing endeavors, the Hague Conferences were emblematic of these
changes and avidly followed by all manner of civil society groups, advocates of peace, and
diverse professional and international organizations pursuing their own agendas. Reflecting and
promoting notions circulating far and wide about the promises of science to provide rules for the
betterment of human society, these conferences codified the laws of war for land and sea and
sought arbitral mechanisms to insure peace among nations.

Beset by contradictions, neither law nor civil society action could ultimately halt the steps to war in
July and August 1914. From the perspective of law, the war began “ominously” – Germany
violated the neutrality of Belgium, and Britain dropped the principle of effective blockade and
expanded its contraband list “beyond anything envisioned in international law.”[27] For the first
several years of the war, however, much of the Geneva Convention remained in force; cases of
flagrant violence against prisoners increased after 1916 mostly at the local level. All belligerents
appealed to The Hague when it served their interests.[28] Still, the potential of law for the future
was not lost on contemporaries. Writing in 1917, in the depth of war, the British international
lawyer Thomas Barclay (1853-1941) lamented how “belligerent Governments” had modified –and
“even torn up” – many legal documents. But, he added with hopeful caution, “the present war,
fortunately for mankind, is no criterion of the ultimate scope of human wisdom.”[29]

Jean H. Quataert, Binghamton University, SUNY[30]

Section Editors: Annika Mombauer; William Mulligan

Notes

↑ For international law perspectives, see Nussbaum, Arthur: A Concise History of the Laws of
Nations, New York 1950, p. 191; Koskenniemi, Martti: The Gentle Civilizer of Nations. The Rise
and Fall of International Law, Cambridge 2001. For historical perspectives, see Iriye, Akira: Global
Community. The Role of International Organizations in the Making of the Contemporary World,
Berkeley 2002; Quataert, Jean H.: Advocating Dignity. Human Rights Mobilizations in Global
Politics, Philadelphia 2009.

↑ Eyffinger, Arthur: The 1899 Hague Peace Conference. “The Parliament of Man, The Federation
of the World,” The Hague et al. 1999, pp. 126f; Davis, Calvin DeArmond: The United States and
the Second Hague Peace Conference. American Diplomacy and International Organization, 1899-
1914, Durham 1975, pp. 182-86; Dudden, Alexis: Japan’s Colonization of Korea. Discourse and
Power, Honolulu 2005, p. 11.

↑ Higgens, A. Pearce: The Hague Peace Conferences and Other International Conferences
concerning the Laws and Uses of War, Cambridge 1909, pp. 2, 207. My discussion of law draws
heavily on this valuable source of documents.

↑ Higgens, Hague Peace Conference 1909, pp. 39, 67.

↑ The organization was the Societé français pour l’arbitrage entre les nations. See Guieu, Jean-
Michel: Le Rameau et le glaive. Les militant français pour la Societé des Nations, Paris 2008, pp.
22-26; and also Eyffinger, 1899 Hague Peace Conference 1999, pp. 140-44.

↑ Grandin, Greg: The Liberal Tradition in the Americas. Rights, Sovereignty and the Origins of
Liberal Multilateralism, in: The American Historical Review 117/1 (February 2012), p. 70.

↑ Best, Geoffrey: The Restraint of War in Historical and Philosophical Perspective, in: Delissen,
Astrid J. M. / Tanja, Gerald (eds.): Humanitarian Law of Armed Conflict. Challenges Ahead.
Essays in Honour of Frits Kalshoven, Dordrecht et al. 1991, p. 13; Peace, in: Encyclopedia
Britannica 21 (1910), p. 8. For Martens’ arbitration expertise, see Eyffinger, 1899 Hague Peace
Conference 1999, p. 177.

↑ Historians have shown how national affiliation in many ways was the precondition for
international organizing at the time. Rupp, Leila J.: Worlds of Women. The Making of an
International Women’s Movement, Princeton 1997.

↑ Abrams, Irwin: The Emergence of the International Law Societies, in: Review of Politics 19/3
(1957), pp. 371, 377; Uhlig, Ralph: Die Interparlamentarische Union. 1889-1914, Stuttgart 1988,
pp. 48-58, 250-56.

↑ Information on von Suttner at the Hague conferences is in Davis, United States 1975, pp. 24
and 111; Eyffinger, 1899 Hague Peace Conference 1999, pp. 55-58.

↑ Peace 1910, p. 4; Eyffinger, 1899 Hague Peace Conference 1999, pp. 31-35, 55-68.

↑ Iriye, Global Community 2002, pp. 18f; Herren, Madeleine: Internationale Organisationen seit
1865. Eine Globalgeschichte der internationalen Ordnung, Darmstadt 2009, pp. 23f.

↑ Festa, Lynn: Humanity without Feathers, in: Humanity. An International Journal of Human
Rights, Humanitarianism, and Development 1/1 (Fall 2010), pp. 3-27.

↑ Bugnion, François: From Solferino to the Birth of Contemporary International Humanitarian Law,
issued by ICRC.org, online: http://www.icrc.org/eng/resources/documents/article/other/solferino-
article-bugnion-240409.htm (retrieved: January 2010), pp. 3-11.

↑ Quataert, Jean H.: Staging Philanthropy. Patriotic Women and the National Imagination in
Dynastic Germany, 1813-1916, Ann Arbor 2001, pp. 39-49, 67-74.

↑ Geneva Convention for the Amelioration of the Condition of the Wounded on the Field of Battle,
in: Higgens, Hague Peace Conference 1909, pp. 8-12.

↑ Geneva Red Cross Archives (ACICR), AF (Ancien Fonds), 19, 2 “Appel à l’humanité pour
l’organisation d’une Societé de Secours aux blesses dans l’Empire Ottoman,” 1868 and Project
 Moynier, “La Croix-Rouge et l’Islamisme,” a confidential report circulating in 1906 at the time of
the international conference to revise the Geneva Convention.

↑ Higgens, Hague Peace Conference, 1909, Hague IV. Laws and Customs of War, Chapter III,
Art. 21, p. 233 and Geneva Convention, 1906, Art. 10, p. 24.

↑ For the Lieber Code, see Nussbaum, A Concise History 1950, p. 196. For the influences of
lawyers, see Barclay, Thomas: International Law and Practice, with Appendices, London et al.
1917, pp. vi-vii.

↑ Higgens, Hague Peace Conference 1909, p. 457.

↑ The Declaration of London is in Barclay, International Law 1917, pp. 13-19.

↑ Davis, United States 1975, p. 211.

↑ The International Military Tribunal at Nuremberg in 1946 used the clause’s assumptions to
establish jurisdiction over “crimes against humanity” as grave breaches of international customary
law; it also became part of Common Article 3 of the revised Geneva Conventions of 1949. See
Roberts, Adam / Guelff, Richard (eds.): Documents on the Laws of War, Oxford 1989, pp. 153-56,
217.

↑ Higgens, Hague Peace Conference 1909, p. 164; Davis, Calvin deArmond: The United States
and the First Hague Peace Conference, Ithaca 1962, p. 164; a view echoed in Best, Geoffrey:
Peace Conferences and the Century of Total War. The 1899 Hague Conferences and What Came
After, in: International Affairs 75/3 (1999), p. 628.

↑ The quotes are found in Davis, United States 1962, p. 142, 139, and 152.

↑ Higgens, Hague Peace Conference 1909, pp. 184-97; Davis, United States 1975, pp. 251-76.

↑ Nussbaum, A Concise History 1950, pp. 245f.

↑ Jones, Heather: Violence against Prisoners of War in the First World War. France, Britain and
Germany, 1914-1920, Cambridge 2011, pp. 11ff, 17f.

↑ Barclay, International Law 1917, p. 19.

↑ I want to thank the two anonymous readers for their useful suggestions for revisions, which
helped sharpen and focus this analysis of international law-writing in the context of the evolving
geopolitical order in the second half of the “long” 19th century.

Potsdam Agreement:

Soviet Leader Joseph Stalin and President Harry Truman

The major issue at Potsdam was the question of how to handle Germany. At Yalta, the
Soviets had pressed for heavy postwar reparations from Germany, half of which would go to
the Soviet Union. While Roosevelt had acceded to such demands, Truman and his Secretary
of State, James Byrnes, were determined to mitigate the treatment of Germany by allowing
the occupying nations to exact reparations only from their own zone of occupation. Truman
and Byrnes encouraged this position because they wanted to avoid a repetition of the situation
created by the Treaty of Versailles, which had exacted high reparations payments from
Germany following World War One. Many experts agreed that the harsh reparations imposed
by the Versailles Treaty had handicapped the German economy and fueled the rise of the
Nazis.
Despite numerous disagreements, the Allied leaders did manage to conclude some
agreements at Potsdam. For example, the negotiators confirmed the status of a demilitarized
and disarmed Germany under four zones of Allied occupation. According to the Protocol of
the Conference, there was to be “a complete disarmament and demilitarization of Germany”;
all aspects of German industry that could be utilized for military purposes were to be
dismantled; all German military and paramilitary forces were to be eliminated; and the
production of all military hardware in Germany was forbidden. Furthermore, German society
was to be remade along democratic lines by repeal of all discriminatory laws from the Nazi
era and by the arrest and trial of those Germans deemed to be “war criminals.” The German
educational and judicial systems were to be purged of any authoritarian influences, and
democratic political parties would be encouraged to participate in the administration of
Germany at the local and state level. The reconstitution of a national German Government
was, however, postponed indefinitely, and the Allied Control Commission (which was
comprised of four occupying powers, the United States, Britain, France, and the Soviet
Union) would run the country during the interregnum.

One of the most controversial matters addressed at the Potsdam Conference dealt with the
revision of the German-Soviet-Polish borders and the expulsion of several million Germans
from the disputed territories. In exchange for the territory it lost to the Soviet Union
following the readjustment of the Soviet-Polish border, Poland received a large swath of
German territory and began to deport the German residents of the territories in question, as
did other nations that were host to large German minority populations. The negotiators at
Potsdam were well-aware of the situation, and even though the British and Americans feared
that a mass exodus of Germans into the western occupation zones would destabilize them,
they took no action other than to declare that “any transfers that take place should be effected
in an orderly and humane manner” and to request that the Poles, Czechoslovaks and
Hungarians temporarily suspend additional deportations.

In addition to settling matters related to Germany and Poland, the Potsdam negotiators
approved the formation of a Council of Foreign Ministers that would act on behalf of the
United States, Great Britain, the Soviet Union, and China to draft peace treaties with
Germany’s former allies. Conference participants also agreed to revise the 1936 Montreux
Convention, which gave Turkey sole control over the Turkish Straits. Furthermore, the
United States, Great Britain, and China released the “Potsdam Declaration,” which threatened
Japan with “prompt and utter destruction” if it did not immediately surrender (the Soviet
Union did not sign the declaration because it had yet to declare war on Japan).

The Potsdam Conference is perhaps best known for President Truman’s July 24, 1945
conversation with Stalin, during which time the President informed the Soviet leader that the
United States had successfully detonated the first atomic bomb on July 16, 1945. Historians
have often interpreted Truman’s somewhat firm stance during negotiations to the U.S.
negotiating team’s belief that U.S. nuclear capability would enhance its bargaining power.
Stalin, however, was already well-informed about the U.S. nuclear program thanks to the
Soviet intelligence network; so he also held firm in his positions. This situation made
negotiations challenging. The leaders of the United States, Great Britain, and the Soviet
Union, who, despite their differences, had remained allies throughout the war, never met
again collectively to discuss cooperation in postwar reconstruction.