“How to…!”: Legal debates on the punishment of violations of the laws of war, war crimes and crimes against humanity in the period between the Franco-Prussian War and the beginning of the Cold War (1869–1949)

Abstract

While the punishment of violations of the laws of war was completely left to the states concerned – whether the party of the perpetrator or that of the victim – in earlier times, the Franco-Prussian War of 1870/71 brought up a debate that has not come to an end completely up to the present. While the Rome Statutes of 1998 states that the International Criminal Court shall only have subsidiary jurisdiction in case that the parties concerned are not able or willing to punish persons responsible for macro-criminality in war and peace, the debate on the role that national and/or international jurisdictional bodies can play in the punishment of such crimes has been on-going ever since the last third of the 19th century. What role shall national (military) courts play? In what cases is it necessary to have an international jurisdictional body to deal with such issues and how shall such a body be organised? What is the role of civilian and military judges in such trials? What shall the relationship between national and international juridical bodies be? Such are the questions that this presentation will deal with, focusing on the answers that jurists and part of the military gave between 1869 and 1949. Starting with the first proposal for an international criminal court brought up by the then president of the Geneva Committee (today the International Committee of the Red Cross), Gustave Moynier in 1872 the presentation will discuss in an exemplary manner the academic debate amongst lawyers and military officers that followed. Several options were on the table and jurists as well as military officers had controversial debates on the how to punish violations of the laws of war that over time became associated with the terms «war crimes» and «crimes against humanity». The use of the tool of military justice always played an important role in this context and is mirrored in the fact that the first two international courts after the Second World War that dealt with international macro-criminality, the IMT in Nuremberg and the IMTFE in Tokyo, both had a hybrid form, being at the same a military tribunal and an international criminal court.