The Elusive Pursuit of a Transnational Legal Order
Chapter 4: International Criminal Law: Victors’ Justice or an Interminable Machine?
The idea of trying political and military leaders for ‘war crimes’ is very old indeed. This should hardly be surprising: after a bloody war in which their young men have been killed, their taxes wasted and civilian life disrupted, the public is baying for vengeance. Thus in 1305 Sir William Wallace, a leading Scottish resistance figure in the Wars of Scottish Independence, was captured in Scotland, transported to London, tried for treason for waging war against the English, executed, and his preserved head, dipped in tar, displayed on a pike on London Bridge. In 1474 Peter von Hagenbach, a feudal lord of the Holy Roman Empire, was tried by an ad hoc tribunal established by the Archduke of Austria for war crimes committed by his forces during the occupation of Breisach. He was found guilty on a command responsibility theory, and beheaded. In 1865 Confederate officer Henry Wirz was tried for abuse of Union prisoners of war at Camp Sumter in Georgia, found guilty and hanged. In 1945 24 Nazi leaders were indicted before the International Military Tribunal, better known as the Nuremberg war crimes tribunal, established by the victorious allies. Of these, 12 were sentenced to death and seven were sentenced to lengthy prison terms. Three were acquitted. In the 1946–48 Tokyo trials, none of the 28 defendants was acquitted by the US-dominated tribunal established by Douglas Macarthur, the US proconsul in charge of post-war Japan. Seven were sentenced to death, 16 to life sentences. Following the Nuremberg...
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