Show notes for ep #34: War Crimes


Hello and welcome to Learning the Law, a podcast about all things legal with a focus on current events where we try to teach you things in an hour. My name is Ashley aka PhoenixNymphy and my co-host who is the man of the hour, my husband Ron. This podcast is purely educational and should not be taken as legal advice, this podcast does not create an attorney-client relationship, this podcast is based on his interpretation of relevant law. Any opinions expressed are the opinions of the individual making them and do not reflect the opinions of any firm, company, or other individuals. Ron is a licensed practicing attorney in the state of California.

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  1. Our Weeks

      1a.  Trump update – Boxes of records found at Mar-lag-o.  Should have been given to the National Archives- he also ripped up documents that should have been preserved.  Where are all those republicans outraged by Hilary’s emails? 

  1. Questions from the audience (if there are any)
  2. Topic of the week – War Crimes (Can you be charged with a war crime in a setting outside of official war (such as a protest)? – RoughGalaxy)
  1.   What is a war crime?

Nutshell – A war crime is a violation of the laws of war that gives rise to individual criminal responsibility for actions by the combatants, such as intentionally killing civilians or intentionally killing prisoners of war, torture, taking hostages, unnecessarily destroying civilian property, deception by perfidy, wartime sexual violence, pillaging, the conscription of children in the military, committing genocide or ethnic cleansing, the granting of no quarter despite surrender, and flouting the legal distinctions of proportionality and military necessity.

( Cassese, Antonio (2013). Cassese’s International Criminal Law (3rd ed.). Oxford University Press)

B. History of War Crime laws

i.      In 1474, the first trial for a war crime was that of Peter von Hagenbach, realized by an ad hoc tribunal of the Holy Roman Empire, for his command responsibility for the actions of his soldiers, because “he, as a knight, was deemed to have a duty to prevent” criminal behavior by a military force. Despite having argued that he had obeyed superior orders, von Hagenbach was convicted, condemned to death, and beheaded.

Ii.      Hague Conventions of 1899 and 1907

Iii.     Geneva Conventions  1864-present

The Geneva Conventions are four related treaties adopted and continuously expanded from 1864 to 1949 that represent a legal basis and framework for the conduct of war under international law. Every single member state of the United Nations has currently ratified the conventions, which are universally accepted as customary international law, applicable to every situation of armed conflict in the world. However, the Additional Protocols to the Geneva Conventions adopted in 1977 containing the most pertinent, detailed and comprehensive protections of international humanitarian law for persons and objects in modern warfare are still not ratified by several states continuously engaged in armed conflicts, namely the United States, Israel, India, Pakistan, Iraq, Iran, and others. Accordingly, states retain different codes and values about wartime conduct. Some signatories have routinely violated the Geneva Conventions in a way that either uses the ambiguities of law or political maneuvering to sidestep the laws’ formalities and principles.

C. Who prosecutes war crimes?

  1.      Leipzig war crimes trials

Just after WWI the world governments started to try and systematically create a code for how War Crimes would be defined. Their first outline of a law was “Instructions for the Government of Armies of the United States in the Field”—also known as the “Lieber Code.” [8] A small number of German military personnel of the First World War were tried in 1921 by the German Supreme Court for alleged war crimes.

Ii.      London Charter of the International Military Tribunal and Nuremberg Trials

The modern concept of war crime was further developed under the auspices of the Nuremberg Trials based on the definition in the London Charter that was published on August 8, 1945. (Also see Nuremberg Principles.) Along with war crimes the charter also defined crimes against peace and crimes against humanity, which are often committed during wars and in concert with war crimes.

Iii.     The Toyko trials

the Tokyo War Crimes Tribunal or simply as the Tribunal, it was convened on May 3, 1946, to try the leaders of the Empire of Japan for three types of crimes: “Class A” (crimes against peace), “Class B” (war crimes), and “Class C” (crimes against humanity), committed during World War II.

Iv.     War crimes in the former Yugoslavia

V.     Who currently prosecutes?

On July 1, 2002, the International Criminal Court, a treaty-based court located in The Hague, came into being for the prosecution of war crimes committed on or after that date. Several nations, most notably the United States, China, Russia, and Israel, have criticized the court. The United States still participates as an observer. Article 12 of the Rome Statute provides jurisdiction over the citizens of non-contracting states if they are accused of committing crimes in the territory of one of the state parties.[9]

War crimes are defined in the statute that established the International Criminal Court, which includes:

  1. Grave breaches of the Geneva Conventions, such as:
    1. Willful killing, or causing great suffering or serious injury to body or health
    2. Torture or inhumane treatment
    3. Unlawful wanton destruction or appropriation of property
    4. Forcing a prisoner of war to serve in the forces of a hostile power
    5. Depriving a prisoner of war of a fair trial
    6. Unlawful deportation, confinement or transfer
    7. Taking hostages
    8. Directing attacks against civilians
    9. Bodo League massacre during the Korean War in 1950
    10. Directing attacks against humanitarian workers or UN peacekeepers
    11. Killing a surrendered combatant
    12. Misusing a flag of truce
    13. Settlement of occupied territory
    14. Deportation of inhabitants of occupied territory
    15. Using poison weapons
    16. Using civilians as shields
    17. Using child soldiers
    18. Firing upon a Combat Medic with clear insignia.
  2. The following acts as part of a non-international conflict:
    1. Murder, cruel or degrading treatment and torture
    2. Directing attacks against civilians, humanitarian workers or UN peacekeepers
  3. The following acts as part of an international conflict:
  4. Civilians killed in shelling in eastern Ukraine. According to the HRW report, “The use of indiscriminate rockets in populated areas violates international humanitarian law, or the laws of war, and may amount to war crimes.”[10]
    1. Taking hostages
    2. Summary execution
    3. Pillage
    4. Rape, sexual slavery, forced prostitution or forced pregnancy

E. Examples of War Crimes that have not been prosecuted?

I.     War crimes committed by the United States Army in the Philippines include the March across Samar, which led to the court martial and forcible retirement of Brigadier General Jacob H. Smith.[1] Smith instructed Major Littleton Waller, commanding officer of a battalion of 315 U.S. Marines assigned to bolster his forces in Samar, regarding the conduct of pacification, in which he stated the following:

I want no prisoners. I wish you to kill and burn, the more you kill and burn the better it will please me. I want all persons killed who are capable of bearing arms in actual hostilities against the United States.[6][7][8]

SMajor Littleton Waller asked:

“I would like to know the limit of age to respect, sir.”

“Ten years”, Smith responded.

“Persons of ten years and older are those designated as being capable of bearing arms?”

“Yes.” Smith confirmed his instructions a second time.[6][7][8]


Toyko fire bombing

March to the sea


Indigenous genocide

The victors determine who is prosecuted.


Thank you so much for listening to learning the law. If you liked this podcast and want to hear more, don’t forget to like, subscribe, follow, and share in all your favorite places.. Don’t forget to follow us on Twitter at Learning the Law, Ron on at Necrokijo and Ashley at PhoenixNymphy. If you have any questions please tweet, comment, or email at This has been a Two Lazy Dogs production.

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