Victor's justice
Encyclopedia
The label "victor's justice" (in German
, Siegerjustiz) is a situation in which an entity partakes in carrying out "justice
" on its own basis of applying different rules to judge what is right or wrong for their own forces and for those of the (former) enemy. Advocates generally charge that the difference in rules amounts to hypocrisy
and leads to injustice. Targets of the label may consider it derogatory.
Closely related is "Vae Victis
behaviour", where victor unilaterally changes the agreed treaties or their interpretations and is seen as a form of victor's justice.
But to enemies of war, Roman law attributed neither duties nor rights; hence judgment – and punishment – of defeated foes was at Roman discretion. Still, the exercise of that discretion must serve justice
, Cicero argued: "...when the victory is won, we should spare those who have not been blood-thirsty and barbarous in their warfare" (warmaking being excused only when "we may live in peace unharmed" in no other way).
The Western tradition of thinking on just war
continues into Christendom
and then Modernity
, and from the late 19th century becomes codified in international conventions, most notably those of Geneva
and the Hague
, then said to express laws of war
.
, the author recounts the imprisonment and trial of Major Henry Wirz
, CSA, commandant of the prison camp operated at Andersonville, Ga. during the American Civil War
. Many of the phenomena and issues later observed in the war-crimes trials following the Second World War may be seen in this account of Wirz's trial, conviction, sentencing, and execution.
The Nuremberg Criminal Court for war crimes
(and subsidiary courts like the Dachau International Military Tribunal
) prosecuted only Axis
nationals or collaborators. However it is usual that the armed forces of a civilised country
issue their forces with detailed guidance on what is and is not permitted under their military code. These are drafted to include any international treaty obligations and the customary laws of war. For example at the trial of Otto Skorzeny
his defence was in part based on the Field Manual
published by the War Department of the United States Army, on 1 October 1940, and the American Soldiers' Handbook. If a member of the armed forces breaks their own military code they can expect to face a court martial. When members of the Allied armed forces broke their military codes they could be tried, as for example the Dachau massacre
or the Biscari Massacre
trials. The unconditional surrender
of the Axis powers was unusual and led directly to the formation of the international tribunals. Usually international wars end conditionally and the treatment of suspected war criminals makes up part of the peace treaty. In most cases those who are not prisoners of war are tried under their own judicial system if they are suspected of committing war crimes – as happened the end of the concurrent Continuation War
where Allied Control Commission provided a list of occurrences of war crimes and crimes against peace, and the investigation and judgement of these cases were left to Finnish courts according to Finnish law
. However, in that case an ex post facto law
had to be stated, as the Finnish Criminal Act didn't contain a concept of being responsible of politics resulting in a war. In restricting the international tribunal to trying suspected Axis war crimes, the Allies were acting within normal international law.
, in Rwanda
and Afghanistan
.
The International Criminal Court
was set up in 2003 as a treaty arrangement between member states in an attempt to provide a neutral international court
that avoids the accusation of "victor's justice", and that would prosecute all alleged war crimes, on either side of any conflict.
The United States
has currently refused to join the ICC, and critics of this decision sometimes claim that this comes out of a desire for victor's justice. See the article on the court for more detail on US and other objections to it.
Two further recent conflicts in which the U.S. have been involved have led to allegations of victor's justice:
German language
German is a West Germanic language, related to and classified alongside English and Dutch. With an estimated 90 – 98 million native speakers, German is one of the world's major languages and is the most widely-spoken first language in the European Union....
, Siegerjustiz) is a situation in which an entity partakes in carrying out "justice
Justice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
" on its own basis of applying different rules to judge what is right or wrong for their own forces and for those of the (former) enemy. Advocates generally charge that the difference in rules amounts to hypocrisy
Hypocrisy
Hypocrisy is the state of pretending to have virtues, moral or religious beliefs, principles, etc., that one does not actually have. Hypocrisy involves the deception of others and is thus a kind of lie....
and leads to injustice. Targets of the label may consider it derogatory.
Closely related is "Vae Victis
Vae victis
Vae victis is Latin for "Woe to the vanquished " or also "Woe to the conquered "....
behaviour", where victor unilaterally changes the agreed treaties or their interpretations and is seen as a form of victor's justice.
History of the laws of war
Legal constraints on the conduct of war in ancient Rome appear in Cicero: "As for war, humane laws touching it are drawn up in the fetial code of the Roman People." Specifically, "no war is just, unless it is entered upon after an official demand for satisfaction has been submitted or warning has been given and a formal declaration made." Breaches of this duty by Roman citizens were adjudicated at trial.But to enemies of war, Roman law attributed neither duties nor rights; hence judgment – and punishment – of defeated foes was at Roman discretion. Still, the exercise of that discretion must serve justice
Just War
Just war theory is a doctrine of military ethics of Roman philosophical and Catholic origin, studied by moral theologians, ethicists and international policy makers, which holds that a conflict ought to meet philosophical, religious or political criteria.-Origins:The concept of justification for...
, Cicero argued: "...when the victory is won, we should spare those who have not been blood-thirsty and barbarous in their warfare" (warmaking being excused only when "we may live in peace unharmed" in no other way).
The Western tradition of thinking on just war
Just War
Just war theory is a doctrine of military ethics of Roman philosophical and Catholic origin, studied by moral theologians, ethicists and international policy makers, which holds that a conflict ought to meet philosophical, religious or political criteria.-Origins:The concept of justification for...
continues into Christendom
Christendom
Christendom, or the Christian world, has several meanings. In a cultural sense it refers to the worldwide community of Christians, adherents of Christianity...
and then Modernity
Modernity
Modernity typically refers to a post-traditional, post-medieval historical period, one marked by the move from feudalism toward capitalism, industrialization, secularization, rationalization, the nation-state and its constituent institutions and forms of surveillance...
, and from the late 19th century becomes codified in international conventions, most notably those of Geneva
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
and the Hague
Hague Conventions (1899 and 1907)
The Hague Conventions were two international treaties negotiated at international peace conferences at The Hague in the Netherlands: The First Hague Conference in 1899 and the Second Hague Conference in 1907...
, then said to express laws of war
Laws of war
The law of war is a body of law concerning acceptable justifications to engage in war and the limits to acceptable wartime conduct...
.
Allegations of victor's justice
A stark and detailed example of victor's justice is presented by James Madison Page in his 1908 book The True Story of Andersonville Prison, subtitled "A Defense of Major Henry Wirz." After describing his months as a prisoner of war of the ConfederacyConfederate States of America
The Confederate States of America was a government set up from 1861 to 1865 by 11 Southern slave states of the United States of America that had declared their secession from the U.S...
, the author recounts the imprisonment and trial of Major Henry Wirz
Henry Wirz
Heinrich Hartmann Wirz better known as Henry Wirz was a Confederate officer in the American Civil War...
, CSA, commandant of the prison camp operated at Andersonville, Ga. during the American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
. Many of the phenomena and issues later observed in the war-crimes trials following the Second World War may be seen in this account of Wirz's trial, conviction, sentencing, and execution.
The Nuremberg Criminal Court for war crimes
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
(and subsidiary courts like the Dachau International Military Tribunal
Dachau International Military Tribunal
The Dachau Trials were held for all war criminals caught in the United States zones in occupied Germany and Austria, as well as for those individuals accused of committing war crimes against American citizens and its military personnel...
) prosecuted only Axis
Axis Powers
The Axis powers , also known as the Axis alliance, Axis nations, Axis countries, or just the Axis, was an alignment of great powers during the mid-20th century that fought World War II against the Allies. It began in 1936 with treaties of friendship between Germany and Italy and between Germany and...
nationals or collaborators. However it is usual that the armed forces of a civilised country
issue their forces with detailed guidance on what is and is not permitted under their military code. These are drafted to include any international treaty obligations and the customary laws of war. For example at the trial of Otto Skorzeny
Otto Skorzeny
Otto Skorzeny was an SS-Obersturmbannführer in the German Waffen-SS during World War II. After fighting on the Eastern Front, he was chosen as the field commander to carry out the rescue mission that freed the deposed Italian dictator Benito Mussolini from captivity...
his defence was in part based on the Field Manual
Field Manual
__FORCETOC__Field Manual is the second solo album by Death Cab for Cutie guitarist Chris Walla, released on January 29, 2008 on Barsuk Records. The album is Walla's first under his own name...
published by the War Department of the United States Army, on 1 October 1940, and the American Soldiers' Handbook. If a member of the armed forces breaks their own military code they can expect to face a court martial. When members of the Allied armed forces broke their military codes they could be tried, as for example the Dachau massacre
Dachau massacre
The Dachau massacre occurred in the area of the Dachau concentration camp, near Dachau, Germany, on April 29, 1945, during World War II. During the camp's liberation, American soldiers from 45th Infantry Division of the U.S. Seventh Army allegedly wounded and killed German prisoners of war...
or the Biscari Massacre
Biscari massacre
The Biscari massacre includes two World War II incidents in which U.S. soldiers were involved in killing 71 unarmed German and Italian prisoners of war at Biscari on 14 July, 1943.-Background:...
trials. The unconditional surrender
Unconditional surrender
Unconditional surrender is a surrender without conditions, in which no guarantees are given to the surrendering party. In modern times unconditional surrenders most often include guarantees provided by international law. Announcing that only unconditional surrender is acceptable puts psychological...
of the Axis powers was unusual and led directly to the formation of the international tribunals. Usually international wars end conditionally and the treatment of suspected war criminals makes up part of the peace treaty. In most cases those who are not prisoners of war are tried under their own judicial system if they are suspected of committing war crimes – as happened the end of the concurrent Continuation War
Continuation War
The Continuation War was the second of two wars fought between Finland and the Soviet Union during World War II.At the time of the war, the Finnish side used the name to make clear its perceived relationship to the preceding Winter War...
where Allied Control Commission provided a list of occurrences of war crimes and crimes against peace, and the investigation and judgement of these cases were left to Finnish courts according to Finnish law
War-responsibility trials in Finland
The war-responsibility trials in Finland was a trial of the Finnish wartime leaders held responsible for "definitely influencing Finland in getting into a war with the Soviet Union and United Kingdom in 1941 or preventing peace" during the Continuation War, 1941-1944. Unlike other World War II...
. However, in that case an ex post facto law
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
had to be stated, as the Finnish Criminal Act didn't contain a concept of being responsible of politics resulting in a war. In restricting the international tribunal to trying suspected Axis war crimes, the Allies were acting within normal international law.
Attempts to ensure the fairness of war crimes prosecutions
Since World War II, the accusation of victor's justice has arisen in every subsequent conflict where war crimes prosecutions have been made. Examples of include the wars in the former YugoslaviaYugoslav wars
The Yugoslav Wars were a series of wars, fought throughout the former Yugoslavia between 1991 and 1995. The wars were complex: characterized by bitter ethnic conflicts among the peoples of the former Yugoslavia, mostly between Serbs on the one side and Croats and Bosniaks on the other; but also...
, in Rwanda
Rwandan Genocide
The Rwandan Genocide was the 1994 mass murder of an estimated 800,000 people in the small East African nation of Rwanda. Over the course of approximately 100 days through mid-July, over 500,000 people were killed, according to a Human Rights Watch estimate...
and Afghanistan
Afghanistan
Afghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...
.
The International Criminal Court
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
was set up in 2003 as a treaty arrangement between member states in an attempt to provide a neutral international court
International court
International courts are formed by treaties between nations, or under the authority of an international organization such as the United Nations — this includes ad hoc tribunals and permanent institutions, but excludes any courts arising purely under national authority.Early examples of...
that avoids the accusation of "victor's justice", and that would prosecute all alleged war crimes, on either side of any conflict.
The United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
has currently refused to join the ICC, and critics of this decision sometimes claim that this comes out of a desire for victor's justice. See the article on the court for more detail on US and other objections to it.
Current allegations of victor's justice
- The International Criminal Tribunal for the former YugoslaviaInternational Criminal Tribunal for the former YugoslaviaThe International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a...
(ICTY), organized by the United NationsUnited NationsThe United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
has jurisdiction over all acts of genocide, crimes against humanity and war crimes within the territory of former Yugoslavia. However, so far the Tribunal has prosecuted only citizens from the Balkan states. Most defendants have been Serb politicians, soldiers and paramilitaries but Croats, Bosnians and ethnic Albanian Kosovo Liberation ArmyKosovo Liberation ArmyThe Kosovo Liberation Army or KLA was a Kosovar Albanian paramilitary organization which sought the separation of Kosovo from Federal Republic of Yugoslavia in the 1990s....
guerrillas have also been tried. However, the Tribunal has declined to investigate allegations made by Western academics and Serb politicians, who accused NATO officials of war crimes during the 1999 bombing of SerbiaSerbiaSerbia , officially the Republic of Serbia , is a landlocked country located at the crossroads of Central and Southeast Europe, covering the southern part of the Carpathian basin and the central part of the Balkans...
(the Kosovo WarKosovo WarThe term Kosovo War or Kosovo conflict was two sequential, and at times parallel, armed conflicts in Kosovo province, then part of FR Yugoslav Republic of Serbia; from early 1998 to 1999, there was an armed conflict initiated by the ethnic Albanian "Kosovo Liberation Army" , who sought independence...
), including the deliberate bombing of a Serb TV station killing journalists, and the lethal bombing (possibly reckless) of a railway bridge whilst a civilian train was passing over it.
Two further recent conflicts in which the U.S. have been involved have led to allegations of victor's justice:
- After the war in Afghanistan, the U.S. administration set up detention camps such as Camp X-RayCamp X-RayCamp X-Ray was a temporary detention facility at the Guantanamo Bay detention camp of Joint Task Force Guantanamo on the U.S. Naval Base in Guantánamo Bay, Cuba.The first twenty detainees arrived at Guantanamo on January 11, 2002....
where they asserted that the detainees held there are illegal enemy combatants in an ongoing war, and as such can be denied protection under the Geneva ConventionsGeneva ConventionsThe Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
. It is by no means clear that this is the correct legal interpretation of the detainees' legal rights under United States and international law. Although judicial review of this position is currently under way in the United States, it is in no way certain that a final legal ruling will be made since the Bush administration has argued that habeas corpusHabeas corpusis a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
no longer applies to these detainees.
- Concerns have been raised that the post-2003 administration in IraqIraqIraq ; officially the Republic of Iraq is a country in Western Asia spanning most of the northwestern end of the Zagros mountain range, the eastern part of the Syrian Desert and the northern part of the Arabian Desert....
may not have the legal skills or inclination to try war crimes and crimes against humanity allegedly committed by the former Iraqi Ba'ath regime fairly and that this represents a desire for victor's justice through show trialShow trialThe term show trial is a pejorative description of a type of highly public trial in which there is a strong connotation that the judicial authorities have already determined the guilt of the defendant. The actual trial has as its only goal to present the accusation and the verdict to the public as...
s. Commentators on international humanitarian law have argued that it has to be done this way because the ICC cannot prosecute crimes committed prior to its creation and the U.S. administration claims that there is not the international will to set up another ad hoc ICTFY style court. However, ex-Baath party members could have been tried by a U.S. or British court martial or Nuremberg-style tribunal—however this may have led to even more accusations of victor's justice, even if it had led to more orderly or fairer trials.