Atomic bombs use-a war crime?

It should be a distinction between international law on the conduct of war and post ww2 trials that were not based on any law regardless of source.
There was no international convention to establish a war crimes court like it is today. So by themselves the Nurenberg executions are war crimes because POW's and civilians were executed by an ocupation force. The only ones who had the right to judge the germans were the germans. This is what happened after ww1 and H. Goring was one of the war criminals of ww1, but the germans did not make to much effort to punish any of them. That is why the germans prosecuted again the convicted war criminals after were released by the allies, breaking a penal law custom of not prosecute twice for the same deed.
Still, today, the War Crimes Haga Tribunal can not prosecute US soldiers because of bilateral treaties that US has with most countries preventing this.
The rules of war did not apply to Spanish Civil War because it was a ... civil war so spanish laws took precedence. A bomber was not a war criminal but a murderer.

Have a look at this:

http://www.derechos.org/nizkor/nuremberg/judgment/cap5.html

And this:

http://www.lib.byu.edu/~rdh/wwi/1918p/pacific.html

This:

http://www.yale.edu/lawweb/avalon/intdip/interam/intam01.htm

My opinion is that no international treaty binding to Germany was a base for trials against individuals. I saw the pages on your links and I found no argument for trials that I can accept. As they said: "can be no punishment of crime without a pre-existing law. Nullum crimen sine lege. nulla poena sine lege."
This is the first thing they teach you in law school. You can not define a new crime and a punishment for it after the crime is comited.

Wars of aggression were perceived as an international crime before the time of Nuremberg, as numerous drafts and treaties show.

Wars of aggression were perceived as an international crime before the time of Nuremberg, as numerous drafts and treaties show.

Well, I know we have discussed this before, but is there not a long history, probably at least since the time of the Roman Empire, of the winners deciding what constitutes a war crime?

In that light, I've heard it said (by some Americans, btw) that if the Allies had lost WWII, e.g., Gen Curtis Le May would have been tried as a war criminal for strategizing/ordering the fire bombing of Tokyo in March 1945. (which, I think killed more people than did Hiroshima and Nagaski.) Of course..if that loss had occurred, I guess litigation would have been the very least of our problems...

(It's in my mind, because, I just saw this new movie, "Memoirs of a Geisha", and there's some scenes in it that pertain to the bombing of Tokyo, and are quite striking.

Did anyone mention the Geneva convention rules? I realize that, of late, the U.S. has not exctly been a leader in this area of international law, and has dragged it's heels on other initiatives, (such as banning the ndiscriminate use of land mines), so don't point that flamethrower at me until, at least, after the New Years' party is over. cheers.

Oh yes, but they do continue:

take care

Your second quote is just an moral opinion to justify the trials, while the first is of an old corner stone of penal law. Big difference.
Let us analyse the following: "for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished"
The sole reason for trials is the knowledge of "wrong" of the attacker? Let us say that "wrong" and "attacker" are notions that have to be proven in the trial and to consider them as reasons for a trial makes the trial redundant.
Another basic principle that I used is: "neretroactivitatea legii penale" that means that a penal law can not have effect to crimes prior to her coming to effect unless the effect is in favor of the defendant. So if you make now a law prohibiting the "known wrong" of abortion you can not prosecute the ones that carried abortions in the last 16 years. When in 1990 abortion was "deincriminat" those accused and condamned for this were set free.
To create a new legal sistem for a trial is not a good standard for justice.
I did not say that there are no reasons for the trials, just that I don't find them covincing from a legal standpoint.

P.S. Sorry for the use of romanian words. I did not know the translation of this legal words in english

This post has been edited by Kosmo on January 03, 2006 08:53 am

Germany signed treaties and pacts which explicitly outlawed war as a means of settling disputes. Also, as shown, at that time wars of aggression were considered international crimes. The idea that the hitlerites were unaware of their crimes because there was no law to condemn them is wrong, rather they were aware of them but considered nobody able to hold them accountable. As the war turned into a defeat their military power was no longer there to protect them and they were held accountable.
However, the will to hold them accountable was materially expressed as early as 1942, and not as a result of "the winner writes history"!
I see no case of retroactivity.

The previous custom of criminalising aggressive war throughout treaties, drafts and bilateral pacts was given the status of law by forming a body able to hold aggressors accountable.

take care

"Germany signed treaties and pacts which explicitly outlawed war as a means of settling disputes". I have to agree with this fact you state, but to disagree with your conclusion. Nothing in any treaty said "the authorities of the signatory party that carry a war of agresion are punished by the death penalty or life imprisonment" or "the individuals that started a war of agression will be put to trial by a court of the opposing nations" or how you want to put it.
Not to mention that two of the judging countries were not signatary to most of Nation League treaties.

P.S. I do not denial nazi war crimes or defend them, but I have to say that legal base for the Nurenberg trials was as weak as was the moral ground that failed in so many aspects in a very important matter.

Which treaties and pacts are you thinking of? I'm only aware of one proclamation which outlawed war, and it was not taken seriously from the start because it was utopic and unenforceable, though well-meaning in theory.

Who are the "hitlerites"? What crimes are you referring to? If you're referring to the SS and their Holocaust-related crimes, they are indeed clear-cut and the convictions well-deserved.

If you're referring to other political and military accusations, the Nuremberg trial clearly drafted a new set of laws and regulations and retroactively convicted many German politicians and officers. Kosmo's "abortion" analogy is accurate.

The prosecution also acted in a deceitful manner, cherry-picking some documents while "hiding" others sought after by the defense lawyers. Furthermore, documents which exonerated German officials or incriminated Allied governments were also destroyed or stored away in GB and US without being brought to the attention of the Court, let alone of the public.

This was an obvious example of "winners writing history". They wrote a new set of regulations, they were at once the judges, the guardians, the prosecutors, the psychologists, and the archivists.

Martin Gilbert was one of the psychologists for the Nuremberg prisoners. He also reported everything he heard to Justice Jackson and forewarned him of the defense strategies some of the prisoners conveyed to him.

And the examples go on and on...

What is important is that the crime was recognised as such, and it was deemed important to punish it.
The lack of a body to enforce punishment effectively doesnt exonerate the crime. The Allies immediately started framing a new system of international relations, one without the vulnerabilities of the League period:

- January 1st 1942 Declaration of the United Nations - 26 signatory countries

- October 6th 1942 The setting up of a UN commission to investigate war crimes is announced in Washington. [ http://www.worldwar-2.net/timelines/the-am...-index-1942.htm ]

As for the punishment, the parties involved could have summoned the germans under trial to their national courts, try them there and then execute them. Instead, out of the ashes of the war it was considered better to build an international order where treaties are not just "pieces of paper" like Hitler boasted, and leaders are held accountable. I dont see where the problem is.

If the germans were to be tried in Germany, under what laws were they to be tried? Weimar laws or nazi laws? Wouldnt that have been retroactivity? So what next? Better leave them alone, I guess.

Also, international law is different from domestic law. It is difficult to ask non retroactivity from international law when there was no body to pass laws.

take care

Once again, which political and military crime(s) are you speaking of (excluding the cases of Holocaust-type exterminations which were obviously illegal according to every law under the sun)?

It's not a question of a lack of a body to enforce the laws, but rather the lack of the laws themselves.

Then, after the fact, the winners got together, formed a body of law, and decided: "Wait, action X should have been illegal. And remember action Y, that sounds wrong too. Let's make that illegal also, so we can convict them of it. And action Z too. Oh, wait - we also did most of these things. Bah, we're not on trial, they are. We just won't allow them to bring it up in court, and we won't hand over to them any papers documenting it".

There was not the slightest semblance of justice during the Nuremberg proceedings.

Not to mention the fact that many of the practices for which Germany was accused at Nuremberg were practices of the allies themselves.

By the way, in 1945-46 many German POW's died of starvation in British camps. So did several thousand Afrika Corps soldiers a couple of years earlier in a French POW camp in Northern Africa, until the camp was found by American military inspectors.
Or take the easiest example of all - Soviet camps filled with German POW's. How many returned of those who fought in the 6th Army and surrendered at Stalingrad?

If all of this was not a case of history being written by the winners, why did the Nuremberg court, or a similar court, not convict the people responsible for these deaths and abuses? There was not even an attempt to investigate, let alone prosecute.

There's no question Nuremberg was victor's justice, for the reasons you cite. But no functioning international institutions existed to try them, and no clearly applicable body of law (outside of a few treaties). So what was the alternative? Do nothing? Just consider them POWs and release them when appropriate? Prosecute them under Nazi law? Under Weimar law? Under the victor's own codes of military justice (and if so, what country?). Would any of these really have yielded a more just result?

The easy answer is that they were not prosecuted because they were outside the mandate of the court. The armies involved had existing bodies of military law and functioning military judicial systems (to differing extents, certainly). Of course, the obvious next question is "why weren't those systems applied in these cases?" While we know the answers to that, none of them are too flattering to the states involved.

This post has been edited by Jeff_S on January 04, 2006 01:50 pm

Mabadesc, since there is no world government to issue laws, international law is a different breed from domestic law. The principles of international law are found in international treaties, bilateral pacts, and drafts formulated by international bodies (with leading jurists in the matter).

So we have:

- The Protocol for the Pacific Settlement of International Disputes --> 45 signatory states

- The Briand Kellog Pact --> 46 signatory states

- The Anti-war Treaty of Non-aggression and Conciliation --> 25 signatory states

And some drafts and sessions of the League in which the matter was clearly debated.

Plus, some bilateral (non-aggression) pacts.

This is the body of the law. There was no "wait, action X should have been illegal/ sounds wrong" etc.

take care

This post has been edited by Imperialist on January 03, 2006 11:59 pm

Yes, in my opinion a much better thing then to make up laws. I'm sure that german penal laws were not worse that those of any other country. What you mean by Nazi laws? Do you think that german law did not see the killing of jews or the Comisar Order as murder?
And have the germans judge them. Where enough germans that hold a grudge at top nazis to be less then benvolent towards them.
Make proper accusations and give the defendants proper means to defend.
Then shot them.
Make a true trial, not a judicial murder.
The purpose of a trial is not to punish, but to reestablish the order thru justice.

@ Imperialist
The international treaties that you mention have no relevance to the war crimes trial. In a sense they are like romanian constitution. A fundamental law that should be the base with the principles of a legal sistem, but with no penalty on breaking or not respecting the constitution.
Can you point me the sanctions for breaching the treaties in any of them?