Before delving into the details, I would point out that
aggressive war is ia violation of the provisions of the United
Nations Charter and that miliary operations taken against
another member state without the sanction of the United Nations
is in itself a war crime. This was established at trial in
1947.
Once a war is underway then the procedual offences that are
considered war crimes are any grave breach of the provisions of
the Geneva Conventions of 12 August 1949 or one of the
following:
> b) Other serious violations of the laws and customs applicable in
> international armed conflict, within the established framework of
> international law, namely, any of the following acts:
>
> (i) Intentionally directing attacks against the civilian
> population as such or against individual civilians not taking direct
> part in hostilities;
>
> (ii) Intentionally directing attacks against civilian objects,
> that is, objects which are not military objectives;
>
> (iii) Intentionally directing attacks against personnel,
> installations, material, units or vehicles involved in a
> humanitarian assistance or peacekeeping mission in accordance with
> the Charter of the United Nations, as long as they are entitled to
> the protection given to civilians or civilian objects under the
> international law of armed conflict;
>
> (iv) Intentionally launching an attack in the knowledge that
> such attack will cause incidental loss of life or injury to
> civilians or damage to civilian objects or widespread, long-term and
> severe damage to the natural environment which would be clearly
> excessive in relation to the concrete and direct overall military
> advantage anticipated;
>
> (v) Attacking or bombarding, by whatever means, towns, villages,
> dwellings or buildings which are undefended and which are not
> military objectives;
>
> (vi) Killing or wounding a combatant who, having laid down his
> arms or having no longer means of defence, has surrendered at
> discretion;
>
> (vii) Making improper use of a flag of truce, of the flag or of
> the military insignia and uniform of the enemy or of the United
> Nations, as well as of the distinctive emblems of the Geneva
> Conventions, resulting in death or serious personal injury;
>
> (viii) The transfer, directly or indirectly, by the Occupying
> Power of parts of its own civilian population into the territory it
> occupies, or the deportation or transfer of all or parts of the
> population of the occupied territory within or outside this
> territory;
>
> (ix) Intentionally directing attacks against buildings dedicated
> to religion, education, art, science or charitable purposes,
> historic monuments, hospitals and places where the sick and wounded
> are collected, provided they are not military objectives;
>
> (x) Subjecting persons who are in the power of an adverse party
> to physical mutilation or to medical or scientific experiments of
> any kind which are neither justified by the medical, dental or
> hospital treatment of the person concerned nor carried out in his or
> her interest, and which cause death to or seriously endanger the
> health of such person or persons;
>
> (xi) Killing or wounding treacherously individuals belonging to
> the hostile nation or army;
>
> (xii) Declaring that no quarter will be given;
>
> (xiii) Destroying or seizing the enemy's property unless such
> destruction or seizure be imperatively demanded by the necessities
> of war;
>
> (xiv) Declaring abolished, suspended or inadmissible in a court
> of law the rights and actions of the nationals of the hostile party;
>
> (xv) Compelling the nationals of the hostile party to take part
> in the operations of war directed against their own country, even if
> they were in the belligerent's service before the commencement of
> the war;
>
> (xvi) Pillaging a town or place, even when taken by assault;
>
> (xvii) Employing poison or poisoned weapons;
>
> (xviii) Employing asphyxiating, poisonous or other gases, and
> all analogous liquids, materials or devices;
>
> (xix) Employing bullets which expand or flatten easily in the
> human body, such as bullets with a hard envelope which does not
> entirely cover the core or is pierced with incisions;
>
> (xx) Employing weapons, projectiles and material and methods of
> warfare which are of a nature to cause superfluous injury or
> unnecessary suffering or which are inherently indiscriminate in
> violation of the international law of armed conflict, provided that
> such weapons, projectiles and material and methods of warfare are
> the subject of a comprehensive prohibition and are included in an
> annex to this Statute, by an amendment in accordance with the
> relevant provisions set forth in articles 121 and 123;
>
> (xxi) Committing outrages upon personal dignity, in particular
> humiliating and degrading treatment;
>
> (xxii) Committing rape, sexual slavery, enforced prostitution,
> forced pregnancy, as defined in article 7, paragraph 2 (f), enforced
> sterilization, or any other form of sexual violence also
> constituting a grave breach of the Geneva Conventions;
>
> (xxiii) Utilizing the presence of a civilian or other protected
> person to render certain points, areas or military forces immune
> from military operations;
>
> (xxiv) Intentionally directing attacks against buildings,
> material, medical units and transport, and personnel using the
> distinctive emblems of the Geneva Conventions in conformity with
> international law;
>
> (xxv) Intentionally using starvation of civilians as a method of
> warfare by depriving them of objects indispensable to their
> survival, including wilfully impeding relief supplies as provided
> for under the Geneva Conventions;
>
> (xxvi) Conscripting or enlisting children under the age of
> fifteen years into the national armed forces or using them to
> participate actively in hostilities.
and, in an internal conflict (civil war) the following
additional offences are operative:
> (i) Violence to life and person, in particular murder of all kinds,
> mutilation, cruel treatment and torture;
>
> (ii) Committing outrages upon personal dignity, in particular
> humiliating and degrading treatment;
>
> (iii) Taking of hostages;
>
> (iv) The passing of sentences and the carrying out of executions
> without previous judgement pronounced by a regularly constituted court,
> affording all judicial guarantees which are generally recognized as
> indispensable.
and finally, also in internal conflicts:
> (i) Intentionally directing attacks against the civilian population as
> such or against individual civilians not taking direct part in
> hostilities;
>
> (ii) Intentionally directing attacks against buildings, material,
> medical units and transport, and personnel using the distinctive emblems
> of the Geneva Conventions in conformity with international law;
>
> (iii) Intentionally directing attacks against personnel,
> installations, material, units or vehicles involved in a humanitarian
> assistance or peacekeeping mission in accordance with the Charter of the
> United Nations, as long as they are entitled to the protection given to
> civilians or civilian objects under the international law of armed
> conflict;
>
> (iv) Intentionally directing attacks against buildings dedicated to
> religion, education, art, science or charitable purposes, historic
> monuments, hospitals and places where the sick and wounded are collected,
> provided they are not military objectives;
>
> (v) Pillaging a town or place, even when taken by assault;
>
> (vi) Committing rape, sexual slavery, enforced prostitution, forced
> pregnancy, as defined in article 7, paragraph 2 (f), enforced
> sterilization, and any other form of sexual violence also constituting a
> serious violation of article 3 common to the four Geneva Conventions;
>
> (vii) Conscripting or enlisting children under the age of fifteen
> years into armed forces or groups or using them to participate actively in
> hostilities;
>
> (viii) Ordering the displacement of the civilian population for
> reasons related to the conflict, unless the security of the civilians
> involved or imperative military reasons so demand;
>
> (ix) Killing or wounding treacherously a combatant adversary;
>
> (x) Declaring that no quarter will be given;
>
> (xi) Subjecting persons who are in the power of another party to the
> conflict to physical mutilation or to medical or scientific experiments of
> any kind which are neither justified by the medical, dental or hospital
> treatment of the person concerned nor carried out in his or her interest,
> and which cause death to or seriously endanger the health of such person
> or persons;
>
> (xii) Destroying or seizing the property of an adversary unless such
> destruction or seizure be imperatively demanded by the necessities of the
> conflict;
There are several more details that deal specifically with
internal conflicts but this captures the salient points I think.
> Can that person speak to whether or not the stratigic bombing the
> Allies did during WWII was a war crime?
That of course depends on you you ask. The relatives of the
400,000 to 800,000 or so German civilians killed in allied
bomber raids, over 70% of whom were women or children under the
age of 14, most of whom died after September 1944, might say
that such slaughter ought to be a crime no matter what. So too
might those of the 500,000 or so Japanese civilians who died in
American bombing raids against Japan from 1944 to 1945.
Technically however, the bomber raids of the Second World War,
by either side, were not war crimes in 1945 because the use of
airpower in war had not then been codified under the Geneva
Conventions and the protocol outlawing aerial bombardment of
1929 was never ratified. But, on the other hand, Article VI of
the Charter establishing the Nuremberg War Crimes Tribunal
stated in part:
> (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;
Which seems to imply that the victorious allies thought that
indiscriminate bombing of civilian targets was criminal, at
least if a German was doing it.
To be fair, the USAAF did attempt to use precision daylight
bombing both in Europe and in the Pacific, which indicates that
a real attempt to avoid unnecessary civilian deaths formed a
consideration in its operational deployment. This in itself is
sufficient to establish the defence of necessity, that available
technology did not permit greater selectivity in targets or
restriction of damage to areas surrounding targets of undoubted
military significance. The nuclear bombing of Hiroshima and
Nagasaki are also probably covered under the defence of
necessity as the the weapon itself was not illegal and its
nature dictated that no sensible restriction of damage could be
contemplated. The one exception to the American experience in
Europe would be American participation in the raids on Dresden
on February 13/14, 1945.
The British case is altogether different. The coincidental RAF
area bombing campaign against Germany could under no
circumstances be considered a legitimate form of warfare,
especially after development and deployment of the H2S aerial
radar system in very early 1943. The uncomfortable position
that the British government found itself in over this issue
probably lies at the root of official denigration of the Bomber
Command veterans at the end of the war.
Different too is the USAAF campaign in the Pacific against the
Japanese home islands. The switch from high level precision
bombing to low level indiscriminate fire bombing of Japanese
cities in 1944 no doubt would have been considered a war crime
under the Nuremberg Charter. However, fortunately for the
USSAF's Curtis LeMay and the RAF's Arthur Harris and their
staffs, the Tribunal itself adopted the position that its
mandate applied only to the conquered powers and so no
indictments of allied military or political leaders was ever
contemplated.
Fundamentally, the issue is not one of law but one of humanity
and utility. Whether it was lawful to burn 800,000 people to
death in their homes or not, it was an evil thing to do and the
result legitimized the use of nuclear weapons (WMD) against
cities and the idea that civilian populations were legitimate
targets in military campaigns. The use of terror as a political
tool that we witness employed against non-military targets today
is, to a considerable degree, morally sanctioned by the lawful
activities of the allied powers aerial campaigns against
essentially defenceless civilians in WWII.
And they were defenceless. Over 50% of all allied bomb tonnage
was dropped on Germany and Japan after September of 1944. By
this time neither Germany nor Japan had an airforce that could
sustain operations, their ground forces were broken, and their
economic infastructure destroyed. Whatever effect the allied
bombing campaign had on the outcome was already felt by
September 1944 and attacks thereafter possessed no military
value, if any ever did.
For, while the official USAAF Strategic Bombing Survey came to
the conclusion that the allied airpower was decisive in
obtaining victory, it carefully avoided describing the role of
the bombing offensive as the central element. In fact, it went
to some pains to demonstrate that the bombing offensive was
never able to effect a decisive rupture of the German economy or
to significantly reduce German production until ground forces
had physically occupied the resource and manufacturing centres.
So, to answer the question: was the allied bombing of enemy
cities a war crime in 1945? No, because the allies won. Winners
are never found guilty because they rarely try themselves.
--
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