War Crimes, Genocide, and the Law Recent Titles in Contemporary Military, Strategic, and Security Issues The Process and Politics of Defense Acquisition: A Reference Handbook David S. Sorenson International Crime and Punishment: A Guide to the Issues James Larry Taulbee Serving America’s Veterans: A Reference Handbook Lawrence J. Korb, Sean E. Duggan, Peter M. Juul, and Max A. Bergmann Military Doctrine: A Reference Handbook Bert Chapman Energy Security Challenges for the 21st Century: A Reference Handbook Gal Luft and Anne Korin, editors An Introduction to Military Ethics: A Reference Handbook Bill Rhodes War and Children: A Reference Handbook Kendra E. Dupuy and Krijn Peters Military Justice: A Guide to the Issues Lawrence J. Morris Military Space Power: A Guide to the Issues Wilson W.S. Wong and James Fergusson American Missile Defense: A Guide to the Issues Victoria Samson Private Armed Forces and Global Security: A Guide to the Issues Carlos Ortiz Women in the United States Armed Forces: A Guide to the Issues Darlene M. Iskra War Crimes, Genocide, and the Law A Guide to the Issues Arnold Krammer Contemporary Military, Strategic, and Security Issues Copyright 2010 by Arnold Krammer All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, except for the inclusion of brief quotations in a review, without prior permission in writing from the publisher. Library of Congress Cataloging-in-Publication Data Krammer, Arnold, 1941– War crimes, genocide, and the law : a guide to the issues / Arnold Krammer. p. cm. — (Contemporary military, strategic, and security issues) Includes bibliographical references and index. ISBN 978-0-313-35937-8 (hardcopy : alk. paper) — ISBN 978-0-313-35938-5 (ebook) 1. War crimes—History. 2. War victims—Legal status, laws, etc. 3. Prisoners of war—Legal status, laws, etc. 4. Prisoners of war—Abuse of. 5. Torture. 6. Genocide. 7. War (International law) I. Title. K5301.K73 2010 341.6'9—dc22 2009051995 ISBN: 978-0-313-35937-8 EISBN: 978-0-313-35938-5 14 13 12 11 10 1 2 3 4 5 This book is also available on the World Wide Web as an eBook. Visit www.abc-clio.com for details. Praeger An Imprint of ABC-CLIO, LLC ABC-CLIO, LLC 130 Cremona Drive, P.O. Box 1911 Santa Barbara, California 93116-1911 This book is printed on acid-free paper Manufactured in the United States of America To the newest members of the Krammer clan, Nathan Douglas and his older sister, Avery Lorraine, in the deep hope that they will grow up in a world in which war crimes are to be found only in history books, and to Erin Channing Buenger, age 11, who left the stage too soon. This page intentionally left blank Contents Acknowledgments ix Chapter 1 War Crimes in History 1 Chapter 2 Searching for the Law 24 Chapter 3 The Worst War Crime of All 45 Chapter 4 Punishment, at Last 82 Chapter 5 The Rules Are Changing 123 Appendix—Primary Documents Laws and Customs of War on Land (Hague IV), October 18, 1907 155 International Convention Relative to the Treatment of Prisoners of War, Geneva, July 27, 1929 165 Universal Declaration of Human Rights, United Nations, 1948 184 Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949 (Geneva Convention III) 190 Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Confl icts (Protocol I), Geneva, July 1977 226 United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 1984 239 Memorandum for John A. Rizzo, Acting General Counsel of the Central Intelligence Agency, from Offi ce of the Assistant Attorney General, August 1, 2002 250 Bibliography 271 Index 285 This page intentionally left blank Acknowledgments A study of war crimes and genocide is diffi cult to read. It is frightening and depressing to be confronted by the horrifi c acts that people do to one another during confl icts. Since wars began, humans have hacked, stabbed, burned, and shot helpless enemy prisoners and civilians and killed unwanted citizens in their own country. Such a book is also diffi cult to write. First, it requires researchers and archivists of a special quality: they need to ensure that the history they relate is accurate; take care that their empathy for the victims and hatred for the perpetrators does not infl uence their interpretation of the records or their level of research interest; and have the optimism to see the possibility of a brighter day in the future. To this end, I have had the great good fortune of meeting some of the best researchers in the business. I am particularly indebted to Dr. Tamara Haygood, Ph.D., M.D., who is preparing a book of her own on the medical treatment provided to prisoners of war during World War II, and Professor Robert C. Doyle, of Franciscan University, in Steubenville, Ohio, a leading expert on prisoners of war, whose book on the history of America’s enemy POWs is about to see publication. I am indebted to Dr. Alicja Witalisz, English department, Pedagogical University of Cracow (Kraków), Poland for her impassioned analysis of the Katyn Forest massacre; Dr. phil. Joachim Neander, also in Kraków, a world-class expert on the Holocaust; and Captain Regan Turner, USMC, a decorated veteran of Afghanistan and Iraq, for valuable insights into the complexities of combat. Help in assembling facts and locating the proper volumes or quotes was the purview of two wonderful and tenacious researchers: Rebecca M. Eaton, of the Bush School of Government and Public Service, and Kathleen Barr, of the history department of Texas A&M University. The best researchers and bibliographical sleuths, I fi nd, are passionate about the topic and clever in locating new sources of information. Leslie McDonald, another graduate of the Bush School of Government and Public Service and currently at Texas x Acknowledgments A&M University’s department of political science, is an excellent writer in her own right and is, as in the past, my fi rst line of editorial defense. All translations from French have been provided by Professor Gérard Chètrit, in Paris, whose fl uency in several languages has been enormously helpful. A major source of modern military information may be found in the U.S. Army Heritage and Education Center in Carlisle, Pennsylvania, under the di- rection of Dr. Conrad C. Crane, where knowledgeable historians like Dr. Rich- ard J. Sommers and Arthur W. Bergeron, Jr., and photo experts like Clif Hyatt, all of whom have spent years immersed in the records, are standing by with keen archival expertise and helpful advice. For the legal side of the issue of war crimes, one can benefi t hugely from a visit to the Robert H. Jackson Center, lo- cated in the Jamestown, New York, home of the Chief American Prosecutor at the Nuremberg Tribunal and Justice of the U.S. Supreme Court. His archives are maintained in a quaint, mid-1800s mansion, adding to the personal touch one receives while reading his correspondence and legal decisions on rights guaranteed to war criminals and defi nitions of their acts. A surprisingly benefi cial source of information appeared in a small county public library in West Virginia. The Brooke County Public Library, in Wells- burg, West Virginia, a local cultural center hard on the banks of the Ohio River, happens to hold an impressive collection of documents related to the Japanese bombardment of Corregidor and the Bataan Death March in the Philippine Campaign during World War Two. Built around the original col- lection donated by survivor Edward Jackfert, the library is watched over by its very competent director, Mary Kay Wallace, MLS. Finally, a book of such emotional demands requires a network of friends and family: the endless tolerance of my wife, Jan, whose encyclopedic knowl- edge and editorial skill have provided answers and corrections at every turn; the irrepressible humor of our son, Adam, in San Francisco; and the sage advice of brother Steven, and his wife, Marleen. When the gloom of man’s horrifi c acts settles over us, we cast our attention to our younger son, Douglas, a paramedic saving lives, a calling that offers us hope for the future. CHAPTER 1 War Crimes in History “All is fair in love and war,” as the old adage goes. But, is that true? Is ev- erything fair in war? What about the rape and murder of helpless women or children? What about the slaughter of wounded or the torture of innocents? Is it acceptable to murder disarmed prisoners of war or religious captives? What about the modern use of napalm, cluster bombs, and land mines, all of which kill and maim more civilians than enemy soldiers? What about sol- diers who sneak up to their enemies under the protection of the Red Cross or a white fl ag? Nearly every nation in history has committed such heinous acts during wartime, even those that glory in their democratic ideals and seek to export them. For example, at the end of the American Civil War, the North’s tri- umphant General Sherman led his army of 62,000 vengeful veterans to burn and loot a swath from 25 to 60 miles wide across the state of Georgia from Atlanta to the sea. “Forage liberally when in need of food or fuel,” Sherman authorized his units. To his men, the euphemism “foraging liber- ally” meant that the enemy’s property was at their disposal and that any discussion of “rules of war” would not be taken seriously.