The nations of the world, including our enemies, have at different times signed treaties governing the conduct of war and outlawing certain kinds of behavior by the forces of the belligerents. The most relevant sources of this written law are (1) the Hague Convention of 1899 relating to the laws and customs of war on land; (2) a revision and extension of this issued in 1907; (3) a convention regulating the treatment of prisoners of war; and (4) a Red Cross convention regarding the treatment of wounded and sick members of armies in the field. The last two were signed in Geneva in 1929.

In addition, certain kinds of behavior are prohibited not only by these international agreements but by the customary or common law of warfare as well. The provisions of the conventions (written law) and also many of the provisions of the common law of warfare (unwritten law) are embodied in the military manuals of civilized states. For the American Army, the relevant law is contained in FM 27–10, Rules of Land Warfare, which summarizes the violations of the laws and customs of warfare most frequently involved, as follows:

“Offenses by armed forces.—The principal offenses of this class are: Making use of poisoned and otherwise forbidden arms and ammunition; killing of the wounded; refusal of quarter; treacherous request for quarter; ... ill-treatment of prisoners of war; ... firing on undefended localities; ... misuse of the Red Cross flag and emblem ... ; bombardment of hospitals and other privileged buildings; improper use of privileged buildings for military purposes; poisoning of wells and streams; pillage and purposeless destruction; ill-treatment of inhabitants in occupied territory.” (Paragraph 347, FM 27–10.)

Some of these offenses (for example, refusal of quarter) can only be military crimes, but ill-treatment of inhabitants in occupied territory, if it results in death, can be prosecuted as “murder in violation of the laws and customs of warfare.”

Offenses against Belligerents

German and Japanese troops have violated many if not most of the laws and customs of war. Thousands of such instances have been and are being recorded by the American, Russian, Polish, Dutch, Norwegian, and other governments. Some of these records are already in print, and we shall draw a few typical examples from documents published by the nations concerned. These examples illustrate the scope of the atrocities which the Axis is charged with having committed. We may usefully begin with some cases relating to the violations of the duties of a belligerent toward enemy troops:

Paragraphs 32 and 33 of Rules of Land Warfare affirm that “it is especially forbidden ... to kill or wound an enemy who, having laid down his arms, or having no longer means of defense, has surrendered at discretion” and that “it is especially forbidden ... to declare that no quarter will be given.”

The Polish Ministry of Information, in a compilation of Nazi atrocities published in 1942, charges that “After the capitulation of the fortress of Modlin, heroically defended until the moment of the surrender of Warsaw, the Germans in one sector of the front murdered a whole platoon of captured Polish soldiers. They ordered them to kneel down and raise their arms, then shot them all with machine-guns. Several Polish officers who had been seized, were also shot in the same way. Others were transported to Zakroczym, where they were placed against a wall and shot. On September 2 and 3, 1939, between Rybnik and Wadzim, in Silesia, the Germans captured a detachment of the 12th Infantry Regiment. They took no prisoners, but threw the men to the ground, and drove over their bodies with tanks.” (Black Book of Poland, pp. 116–117.)

Rules of Land Warfare (paragraph 73, FM 27–10) declare that “prisoners of war are in the power of the enemy power, but not of the individuals or bodies of troops who capture them. They must at all times be treated with humanity and protected, particularly against acts of violence, insults, and public curiosity. Measures of reprisal against them are prohibited.”

According to the representations of Secretary of State Cordell Hull to the Japanese government, as published in the Bulletin of the Department of State, February 12, 1944, the Japanese have savagely disregarded these rights of American and Filipino soldiers. “Prisoners of war who were marched from Bataan to San Fernando in April 1942 were brutally treated by Japanese guards. The guards clubbed prisoners who tried to get water, and one prisoner was hit on the head with a club for helping a fellow prisoner who had been knocked down by a Japanese army truck. A colonel who pointed to a can of salmon by the side of the road and asked for food for the prisoners was struck on the side of his head with the can by a Japanese officer. The colonel’s face was cut open. Another colonel who had found a sympathetic Filipino with a cart was horsewhipped in the face for trying to give transportation to persons unable to walk. ... An American Lieutenant Colonel was killed by a Japanese as he broke ranks to get a drink at a stream ... Americans were ... tortured and shot without trial at Cabanatuan in June or July 1942 because they endeavored to bring food into the camp. After being tied to a fence post inside the camp for two days they were shot.”

Rules of Land Warfare (paragraph 86, FM 27–10) provide that “Belligerents shall be bound to take all sanitary measures necessary to assure the cleanliness and healthfulness of camps and to prevent epidemics. Prisoners of war shall have at their disposal, day and night, installations conforming to sanitary rules and constantly maintained in a state of cleanliness.”

Conditions maintained by the Japanese in the prison camps were a far cry from this humane provision. “At Camp O’Donnell conditions were so bad that 2,200 Americans and more than 20,000 Filipinos are reliably reported to have died in the first few months of their detention. There is no doubt that a large number of these deaths could have been prevented had the Japanese authorities provided minimum medical care for the prisoners. The so-called hospital there was absolutely inadequate to meet the situation. Prisoners of war lay sick and naked on the floor, receiving no attention and too sick to move from their own excrement. The hospital was so overcrowded that Americans were laid on the ground outside in the heat of the blazing sun. The American doctors in the camp were given no medicine, and even had no water to wash the human waste from the bodies of the patients. Eventually, when quinine was issued, there was only enough properly to take care of ten cases of malaria, while thousands of prisoners were suffering from the disease. ... It is reported that in the autumn of 1943 fifty percent of the American prisoners of war at Davao had a poor chance to live and that the detaining authorities had again cut the prisoners’ food ration and had withdrawn all medical attention.”

The code of warfare among civilized nations prohibits the imposition of “punishments other than those provided for the same acts for soldiers of the national armies ... upon prisoners of war by the military authorities and courts of the detaining power.” (Paragraph 119, FM 27–10.)

Yet, to quote Secretary Hull again, “American personnel have suffered death and imprisonment for participation in military operations. Death and long-term imprisonment have been imposed for attempts to escape for which the maximum penalty under the Geneva Convention is thirty days arrest.”

Offenses against Civilians

The rules governing the treatment of civilians in time of war are as tolerant and forbearing as those relating to belligerents. When a territory is captured, “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all measures in his power to restore, and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” (Paragraph 282, FM 27–10.)

This safeguard for the welfare and property of civilians who happen to find themselves in occupied countries has been consistently ignored by the Axis armies. Indeed, it is doubtful whether in the entire history of man’s cruelty to man there is anything which surpasses the butcheries of Jews, Poles, Russians, French, Italians, Greeks, and other peoples caught in the Nazi sweep across the European Continent. The acts of torture, and murder of thousands of men, women, and children in their homes, streets, and barricaded ghettos, in death houses specially constructed for the use of live steam or gas fumes as a lethal weapon, of the forcing of victims to dig their own graves—these acts have been so numerous as to require many volumes to recount them.

For example, “In Lublin and the vicinity on the night of March 23 and 24, the Jewish population was simply driven out of their homes, and the sick and the infirm were killed on the spot. In the Jewish orphanage 108 children from the age of two to nine were taken outside the town together with their nurses and murdered. Altogether that night, 2,500 people were massacred and the remaining 2,600 Jews in Lublin were removed to the concentration camps at Belźec, and Trawniki. ... Mass murders occurred on such a large scale at Rawa Ruska and Bilgoraj that Jewish communities have ceased to exist. ... In Mielec about 1,300 Jews were slaughtered on March 9; in Mir 2,000 Jews were killed; in Nowogródek, 2,500; in Wolozyn, 1,800; in Kajdanów 4,000 were killed. Thirty thousand Jews from Hamburg were deported to Mińsk where they were all murdered.” (Black Book of Poland, p. 579.) Since these acts have not the remotest relation to warfare, they constitute ordinary murders in violation of the penal codes of most civilized states.

Not only have the Nazis shot people in systematic massacres and boasted of it, as ‘in the razing of the Czech town of Lidice, but they have terrorized the inhabitants of occupied countries by seizing -and murdering hostages for the slightest infraction of rules—many of them arbitrary and capricious—which they laid down.

According to Rules of Land Warfare (paragraph 343, FM 27–10), “No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of acts of individuals for which they cannot be regarded as jointly and severally responsible.” Yet, as recorded in the Black Book, “People were hunted down in the town, on the pretext that an attempt had been made to fire at German soldiers from one of the houses. ... About sixty people were seized and shot. One of the houses in the Street of The Blessed Virgin Mary was set on fire by the Germans, after they had thrown hand grenades into it. There were many persons inside. ... It was forbidden to bury or to remove the bodies of those who had been shot, the object being to terrorize the inhabitants by the sight of these corpses. They were left unburied until two days later.” (Black Book of Poland, p. 22.)

“As the German authorities had issued an order the previous day ... that all arms were to be surrendered before 8 p.m., there was a general search for arms. In the Institute of the Order of the School Brothers, an old gun and several Scouts’ caps were found in the theatre wardrobe. On the false pretext that they had been ‘concealing arms,’ two of the Friars and the father of another were taken out and shot in the barrack square of the 27th Infantry Regiment. Their bodies were buried in the barrack garden. Many persons were shot simply because toy pistols had been found in their houses, or old sabres which had been forgotten among the lumber in attics.” (Black Book of Poland, pp. 22–23.)

Rules of Land Warfare (paragraph 299, FM 27–10) order belligerents to respect “family honor and rights, the lives of persons.” The Polish Ministry of Foreign Affairs charges, in the Polish White Book, issued in 1942, that “Under pretense of arresting prostitutes, patrols of German soldiers organized regular raids to carry off young women. A patrol of the 228th regiment of German infantry organized such a raid in one of the quarters by the river early in 1940. Soldiers of the 7th anti-aircraft regiment did the same thing twice in the suburb of Mokotow. Women were taken not only in the streets but also from their homes. These young unfortunates were carried off to the barracks of the German soldiers and raped.” (Pp. 229–230.)

Other provisions of Rules of Land Warfare order belligerents to respect the “religious convictions and practice” of peoples in occupied territories, as well as to spare, as far as possible, “buildings dedicated to religion, art, science, or charitable purposes, historic monuments,” and “places where the sick and wounded are collected, provided that they are not being used at the time for military purposes.” Likewise “The property of municipalities, that of institutions dedicated to religion, charity, and education, the arts and sciences, even when State property” should be treated as private property, and all seizures of or destruction to such institutions, historic monuments, and works of art or science are prohibited. (Paragraphs 58, 299, 318, FM 27–10.)

In a volume of Soviet War Documents, published in 1943, the Soviet Embassy in Washington states that “Churches in Gzhatsk were turned into stables and warehouses. The Germans set up an abattoir for cattle in Blagoveshchensky Church. The Predtechenskaya Church and Kazan Cathedral were blown up. The wells in the town were poisoned and mined. In Sychevka, of 1,000 dwelling houses 770 were blown up or burned. The museum was burned. Over 5,000 paintings, including works by Repin, Levitan, Perov, Aivazovsky, Korovin and others; sculptures by Antokolsky; and gold, silver and bronze articles by masters of the 17th, 18th and 19th Centuries perished in the fire. ... The following were blown up or burned: three secondary and two primary schools, vocational schools ... a library, a hospital, a restaurant, two children’s homes, the water-pumping tower, the town polyclinic, the telegraph office, the radio station and other buildings.” (Pp. 163–164.)

These are but a few examples of the many atrocities charged against the war criminals. Illustrations could be drawn from every occupied country in Europe and Asia. Who is liable for them? The commissioned officers who issue the orders for pillaging and sacking cities and murdering civilians? The political chieftains who set down the policies that are executed by the military commanders? The rank and file of the Axis armies who pull the triggers of guns that kill hostages, or carry the torches that set fire to buildings, or plant the dynamite that blows up schools, churches, libraries, museums? Is a soldier liable for crimes he is ordered to commit?

To try to answer these questions we must first go back and see what happened after the last World War and study the effort made to define war crimes and to punish war criminals.

From EM 11: What Shall Be Done with the War Criminals? (1944)