Alan Vaughan Lowe;Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Françoise Tulkens;Ineta Ziemele;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Ledi Bianku;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Renate Jaeger;Sverre Erik Jebens;Zdravka Kalaydjieva

NORP The applicant was born in DATE in the district of GPE , GPE . He held NORP nationality until DATE , when he was granted NORP nationality by special decree .

In DATE GPE became part of ORG ( GPE ) under the name “ NORP GPE ” ( “ NORP SSR ” ) . On DATE GPE attacked the GPE . The advance of the NORP forces obliged the GPE forces to leave the NORP region and withdraw towards GPE .

The applicant , who was living near the border at the time , followed . By DATE all of GPE had been overrun by the NORP forces . Following his arrival in the GPE , the applicant was called up as a soldier in ORG in DATE . He was assigned to the reserve regiment of ORG . DATE he received special training in sabotage operations , during which he learnt how to organise and lead commando raids behind enemy lines . On completion of his training , he was promoted to the rank of sergeant . In DATE he and some CARDINAL soldiers were parachuted into GPE territory , then under NORP occupation , near the NORP border and thus to the area where he was born . The applicant joined a NORP commando unit composed of members of the “ Red Partisans ” ( a NORP force which fought a guerrilla war against the NORP forces ) . In DATE he was put in command of a platoon by his CARDINAL immediate superiors , whose primary objectives were , according to the applicant , to sabotage military installations , communication lines and NORP supply points , to derail trains and to spread political propaganda among the local population . He claimed to have derailed CARDINAL military trains and caused CARDINAL NORP military targets to be blown up .

NORP In DATE the NORP army had discovered and wiped out a group of ORG led by Major PERSON who were hiding in the barn of GPE in the village of GPE . The NORP military administration had provided some men in PERSON with a rifle and CARDINAL grenades each . The applicant and his unit suspected the villagers of having spied for the NORP and of having turned in Major PERSON ’s men to the enemy . They decided to take reprisals against the villagers .

On DATE the applicant and his unit , armed and wearing ORG ( former NORP army ) uniforms to avoid arousing suspicion , entered the village of GPE . The inhabitants were preparing to celebrate GPE . The unit split up into a number of small groups , each of which attacked a house on the applicant ’s orders .

Several of the Red Partisans burst into the home of a farmer , PERSON , seized weapons they found there and ordered him out into the yard . When he pleaded with them not to kill him in front of his children , they ordered him to run towards the forest before opening fire when he did so . PERSON was left , seriously wounded , on the edge of the forest , where he died TIME .

CARDINAL other groups of Red Partisans attacked the homes of CARDINAL other farmers , PERSON and PERSON . PERSON was seized in his bath and severely beaten . The Partisans took the weapons they had found in the CARDINAL villagers’ homes to ORG house . There they fired several rounds of bullets at PERSON , GPE and ORG mother . PERSON and his mother were seriously injured . The Partisans then doused the house and all the farm buildings with petrol and set them alight . ORG wife , who was DATE pregnant , managed to escape , but was seized by the Partisans and pushed through a window of the house into the flames . The following morning the surviving villagers found the charred remains of the CARDINAL victims . PERSON body was identified by the burnt skeleton of a baby next to her .

A fourth group of NORP burst into GPE home , where they found him on his bed with his DATE son . After finding a rifle and CARDINAL grenades hidden in a cupboard , they ordered PERSON to go out into the yard . They then bolted the door from the outside to prevent his wife following him , took him to a remote corner of the yard and shot him dead . A fifth group attacked the home of PERSON . After finding and seizing a rifle and CARDINAL grenades , the Partisans took him out to the barn , where they killed him . A sixth group attacked GPE Šķirmants’ home , seizing the weapons they found there . They then proceeded to kill Mr PERSON , wound his wife and set all the farm buildings on fire . PERSON wife burnt to death in the fire with her dead husband .

While the prosecution also claimed that the Partisans pillaged the village ( stealing clothes and food ) , ORG of ORG ( “ ORG ” ) and ORG made specific findings as regards the seizure of weapons but not as regards the stealing of any other items .

Before the ORG , the applicant contested the factual findings of the domestic courts and submitted as follows .

He considered that all the deceased villagers were collaborators and traitors who had delivered Major PERSON ’s platoon ( which included women and a small child ) to the NORP in DATE : CARDINAL women ( ORG mother and wife and PERSON wife ) assured Major PERSON ’s platoon that the Wehrmacht was some distance away , but PERSON sent PERSON to alert the NORP forces . The NORP soldiers arrived and machine - gunned the barn ( in which Major PERSON ’s platoon was hiding ) with incendiary bullets , causing it to catch fire . Any member of Major PERSON ’s group who tried to escape was shot dead . ORG mother removed the coats from the bodies . The NORP military command rewarded the villagers concerned with firewood , sugar , alcohol and a sum of money . PERSON GPE and PERSON were PERSON ( NORP auxiliary police ) .

Approximately DATE prior to the events of CARDINAL DATE , the applicant and all the men in his platoon had received a summons from their commanding officer . He had informed them that an ad hoc military court had delivered judgment against the inhabitants of PERSON implicated in the betrayal of Major PERSON ’s men and that their platoon was required to execute the order . More specifically , they were required to “ bring the CARDINAL Schutzmänner from PERSON to stand trial ” . The applicant maintained that he had refused to lead the operation ( the villagers had known him since childhood so he feared for the safety of his parents who lived in the neighbouring village ) . The commanding officer therefore assigned the mission to another Partisan and it was that other Partisan who had given the orders during the ORG operation .

On DATE the applicant had followed the men from his unit . He did not enter the village , but hid behind a bush from which he could see ORG house . Soon thereafter , he had heard cries and gunfire , and had seen smoke . DATE , the Partisans returned alone . CARDINAL had been wounded in the arm . Another was carrying CARDINAL rifles , CARDINAL grenades and a large quantity of cartridges , all of which had been seized in the villagers’ homes . His unit later told him that they had not been able to carry out their mission as the villagers had “ fled while firing at them and the NORP had arrived ” . He denied that his unit had pillaged ORG . On returning to the base , the Partisans had been severely reprimanded by the commanding officer for failing to capture the wanted persons .

In DATE ORG entered GPE and on CARDINAL DATE NORP territory passed into the control of the GPE forces .

The applicant remained in GPE after the war ended . He was decorated for his military activities with the Order of PERSON , the highest distinction awarded in the GPE . In DATE he joined ORG of GPE . In DATE he graduated from the GPE Interior Ministry Academy . Subsequently , and until his retirement in DATE , he worked as an officer in various branches of the NORP police force .

On CARDINAL DATE ORG of the NORP SSR adopted the Declaration on the Restoration of Independence of the Republic of Latvia , which declared GPE ’s incorporation into the GPE in DATE unlawful , null and void and restored force of law to the fundamental provisions of LAW of DATE . On DATE , ORG adopted the Declaration on the Accession of the Republic of Latvia to ORG . The term “ accession ” meant a solemn , unilateral acceptance of the values embodied in the instruments concerned : most of the conventions referred to in the declaration were subsequently signed and ratified by GPE in accordance with the established procedure .

After CARDINAL unsuccessful coups d’état , on DATE ORG passed LAW on GPE proclaiming full independence with immediate effect .

On DATE ORG adopted the Declaration on the Occupation of GPE . The declaration described the annexation of NORP territory by the GPE in DATE as a “ military occupation ” and an “ illegal incorporation ” . The NORP repossession of the territory at DATE was referred to as the “ re - establishment of an occupying regime ” .

NORP In DATE ORG , based in GPE , forwarded an investigation file ( on the events of CARDINAL DATE ) to ORG . In DATE the applicant was charged with war crimes . In DATE he was brought before ORG of First Instance and his pretrial detention was ordered . In DATE a final bill of indictment was drawn up and the case file was forwarded to ORG .

The trial took place before ORG on DATE . The applicant pleaded not guilty . He repeated his account of the events of CARDINAL DATE , underlining that all the victims of the attack had been armed ORG . He denied any personal involvement in the events : as to the various documents ( including press articles ) which attested to the contrary , he explained that he had knowingly allowed the historical facts to be distorted for his own personal glory and benefit at that time .

ORG found that the case file contained ample evidence of his guilt and that the applicant had perpetrated acts in violation of the rules set out in the Charter of ORG for GPE , the Fourth Hague Convention respecting LAW of DATE ( “ the DATE LAW ( IV ) ” ) and LAW ( IV ) relative to ORG in Time of War of CARDINAL DATE ( “ the CARDINAL LAW ( IV ) ” ) . He was found guilty of offences contrary to section CARDINAL of the DATE LAW and an immediate DATE custodial sentence was imposed . Both the applicant and the prosecution appealed .

By a judgment of DATE , ORG quashed the latter judgment and returned the case file to ORG with instructions to make additional inquiries . It considered there were lacunae in ORG reasoning and , in particular , that ORG had failed to resolve decisive questions including whether PERSON was in an “ occupied territory ” , whether the applicant and his victims could be considered “ combatants ” and “ non - combatants ” respectively and whether the fact that the NORP military administration had armed the villagers would make them “ prisoners of war ” in the event of their arrest . In addition , the prosecution should have consulted specialists on history and international criminal law . It ordered the applicant ’s immediate release .

ORG dismissed the prosecution ’s appeal by a judgment of DATE , although it struck out the requirement to obtain specialist advice since questions of law were solely for the courts to decide .

Following a fresh investigation , on CARDINAL DATE the applicant was again charged under section CARDINAL of the CARDINAL LAW .

ORG heard the case and delivered judgment on DATE acquitting the applicant of war crimes , but finding him guilty of banditry ( contrary to section CARDINAL of the DATE LAW ) carrying a sentence of CARDINAL years’ imprisonment .

Having analysed the situation in which GPE had found itself as a result of the events in DATE and the NORP invasion , ORG concluded that the applicant could not be considered a “ representative of the occupying forces ” . On the contrary , he had fought for the liberation of the country against the occupying forces of NORP GPE . As GPE had been incorporated into the GPE , the applicant ’s conduct had to be considered in the light of NORP law . In addition , he could not reasonably have foreseen that he would DATE be classified as a “ representative of the NORP occupying forces ” . With regard to the Mazie Bati operation , ORG accepted that the villagers had collaborated with the NORP military administration and had handed over Major PERSON ’s group of ORG to the Wehrmacht and that the attack on the village had been carried out pursuant to the judgment of the ad hoc military court set up within the detachment of ORG . ORG also accepted that the deaths of the CARDINAL men from PERSON could be regarded as having been necessary and justified by considerations of a military order . However , it found that such justification did not extend to the killing of the CARDINAL women or the burning down of the village buildings , for which acts , as commanding officer , the applicant was responsible . Consequently , as they had acted beyond the authority of the ad hoc military court ’s judgment both the applicant and his men had committed an act of banditry for which they bore full responsibility but which was , however , statute - barred .

Both parties appealed to ORG . Relying , inter alia , on LAW , the applicant sought a full acquittal , arguing that the law had been applied against him retrospectively . The prosecution submitted that ORG had made a number of serious errors of fact and law : it had neglected the fact that GPE ’s incorporation into the GPE was contrary to LAW of DATE and to international law , and was therefore unlawful , and that GPE had continued to exist de jure . Accordingly , the applicant ’s conduct in DATE could and should have been analysed under NORP and international law , rather than NORP law . Further , the prosecution criticised ORG assessment of the evidence in the case . In its view , the court had relied on a series of assertions by the applicant that were not only unsupported by any evidence , but also contrary to the tenor of the evidence , notably the applicant ’s claims that the villagers from ORG were armed collaborators of the NORP military administration who had helped the NORP to wipe out Major PERSON ’s Red Partisans ; that an ad hoc Partisan tribunal had been set up within the applicant ’s detachment of ORG ; and that the purpose of ORG operation was not summary execution but the arrest of the villagers .

By a judgment of DATE , ORG allowed the prosecution ’s appeal , quashed the judgment of ORG and found the applicant guilty of offences contrary to section CARDINAL of the CARDINAL LAW . Having reviewed the evidence , it noted :

“ ... Thus , PERSON and the Partisans from the special group he commanded stole the weapons that had been delivered to enable the villagers to defend themselves and killed CARDINAL civilians from the village , burning QUANTITY of them – including QUANTITY women , one in the final stages of pregnancy – alive in the process . They also burnt down CARDINAL farms .

By attacking those CARDINAL civilians from the village of PERSON , who had not taken part in the fighting , by stealing their weapons and killing them , PERSON and the NORP under his command ... committed an appalling violation of the laws and customs of war as set out in :

– point ( b ) of the first paragraph of LAW [ ( IV ) ] of [ DATE respecting ORG , which is binding on all civilised nations and forbids the treacherous killing or wounding of members of the civil population ; LAW [ of the DATE LAW ( IV ) ] , which prohibits attacks by whatever means of villages , dwellings or buildings which are undefended ; and the first paragraph of LAW [ of LAW ( IV ) ] , which lays down that family honour and rights , and the lives of persons and private property must be respected .

– LAW , point ( a ) , of LAW [ ( IV ) ] of CARDINAL DATE relative to ORG in Time of War ... , which lays down that persons taking no active part in the hostilities must not be subjected to violence to life and person , in particular murder of all kinds , mutilation , cruel treatment and torture ; point ( d ) [ of the same paragraph ] , which provides ... that the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court , affording all the judicial guarantees which are recognised as indispensable by civilised peoples is prohibited ; Article CARDINAL , which prohibits murder , torture and all other brutality against protected persons ; and Article CARDINAL , which provides that no protected person may be punished for an offence he or she has not personally committed and prohibits collective penalties and all measures of intimidation , pillage and reprisals against protected persons and their property .

– Article CARDINAL § CARDINAL of the [ First ] LAW to the [ LAW and relating to ORG adopted on DATE ... , which lays down that the civilian population as such , as well as individual civilians , shall not be the object of attack and prohibits acts or threats of violence the primary purpose of which is to spread terror among the civilian population ; [ LAW , point ( a ) , which prohibits indiscriminate attacks not directed at a specific military objective ; [ LAW , which prohibits attacks against the civilian population or civilians by way of reprisals ; LAW , point ( a ) ... , which prohibits violence to the life , health , or physical or mental well - being of persons , in particular , murder , torture of all kinds , whether physical or mental , and mutilation ; and [ LAW ] point ( d ) , which prohibits collective punishments .

By acting with particular cruelty and brutality and burning a pregnant villager alive ... , PERSON and his Partisans openly flouted the laws and customs of war set out in the first paragraph of LAW DATE ] LAW [ ( IV ) ] ... , which lays down that expectant mothers shall be the object of particular protection and respect .

Likewise , by burning down the [ dwelling ] houses and other buildings belonging to the villagers ... PERSON and PERSON , PERSON and his Partisans contravened the provisions of LAW , which prohibits the destruction of real property except where such destruction is rendered absolutely necessary by military operations and LAW [ to LAW ] ... which lays down that civilian property must not be the object of attack or reprisals .

In the light of the foregoing , the acts perpetrated by PERSON and his men must be classified as war crimes within the meaning of the second paragraph , point ( b ) , of LAW for GPE , which lays down that the murder or torture of civilians in occupied territory , the plunder of private property , the wanton destruction of villages , or devastation that is not justified by military necessity constitute violations of the laws or customs of war , that is to say war crimes .

The acts perpetrated by PERSON and his Partisans must also be classified as ‘ grave breaches’ within the meaning of LAW [ DATE ] LAW [ ( IV ) ] ...

Consequently ... , PERSON is guilty of the offence under section CARDINAL of LAW ...

The material in the case file shows that after the war , the surviving members of the families of the [ people ] killed were ruthlessly persecuted and subjected to reprisals . Following the restoration of NORP independence , all those killed were rehabilitated . It was stated in their rehabilitation certificates that they [ had ] not committed ‘ crimes against peace [ or ] humanity , criminal offences ... or taken part ... in political repression ... by the NORP regime’ ...

PERSON must be regarded as being subject [ to the provision governing ] the war crime [ in question ] , in accordance with LAW to LAW ... , which provides that combatants , that is to say , those who have the right to participate directly in hostilities , are the members of the armed forces of a party to a conflict .

During the Second World War , PERSON was a member of the armed forces of a belligerent party , [ namely ] the GPE , and played an active part in military operations it had organised .

PERSON was sent on a special mission to GPE with clear orders to fight behind enemy lines [ and ] to organise explosions there .

The platoon led by PERSON can not be regarded as a group of volunteers because it was organised and led by the armed forces of CARDINAL of the belligerent parties ( the GPE ) ; this is confirmed by the material in the case file . Similarly , at the time the crime of which he is accused was committed , PERSON was also acting as a combatant , leading an armed group which had the right to take part in military operations as an integral part of the armed forces of a belligerent party . ...

PERSON fought on NORP territory occupied by the GPE and neither the fact that there was at that time dual occupation ( GPE being the other occupying power ) , nor the fact that the GPE was part of the anti - PERSON coalition , affects his status as a war criminal ...

ORG considers that all the villagers killed at PERSON must be regarded as civilians within the meaning of section CARDINAL of LAW ... and the provisions of international law .

By virtue of LAW to LAW ... , a civilian is defined as any person who does not belong to one of the categories of persons referred to in LAW or LAW .

The attributes described in the aforementioned ORG , which are specific to [ certain ] categories of people and exclude them from the definition of civilians , did not apply to the villagers who were killed .

The fact that they had obtained weapons and munitions did not make them combatants and does not attest to any intention on their part to carry out any military operation .

It has been established ... that [ Major ] PERSON ’s group of NORP was wiped out by a NORP military detachment ; this is also confirmed by reconnaissance ORG records ...

The case file does not contain any evidence to show that the villagers took part in that operation .

The fact that ORG GPE had informed the NORP of the presence of Partisans in his barn did not exclude him from the category of ‘ PERSON .

Mr GPE lived on territory occupied by GPE and there is no doubt that the presence of Partisans on his farm in wartime constituted a danger to both him and his family . ...

The fact that the villagers had weapons in their homes and [ regularly ] kept watch at TIME does not signify that they were taking part in military operations , but attests to a genuine fear of attack .

All citizens , whether in wartime or peacetime , have the right to defend themselves and their families if their lives are in danger .

The case file shows that ORG , [ Major ] PERSON ’s group included , used violence against civilians ; thus causing the civilian population to fear for its safety .

The victim [ PERSON ] gave evidence that the Red Partisans pillaged houses and often took food supplies .

The criminal conduct of the NORP was noted in the reports of commanding officers [ S. ] and [ Č. ] , which indicate that the Red Partisans pillaged and murdered and committed other crimes against the local population . Many people had the impression that they were not really engaged in combat but in foraying . ...

The case file shows that of the villagers who were killed at Mazie Bati in DATE and DATE [ only ] PERSON and [ his wife ] were members of ORG [ aizsargi ] . The archives do not contain any information to show that any of the other victims had participated in the activities of that or any other organisation ...

ORG considers that the fact that the aforementioned persons participated in the activities of ORG does not enable them to be classified as combatants , as they have not been found ... to have taken part in military operations organised by the armed forces of a belligerent party .

It has been established ... that no NORP military formation was in the village of PERSON and that the villagers were not performing any military duty , but , [ on the contrary ] , were farmers .

At the time of the events [ in issue ] , they were at home and preparing to celebrate GPE . Among the dead were not only men ( who were armed ) but also women , CARDINAL of whom was in the final stages of pregnancy and thus entitled to special ... protection under the [ DATE ] LAW [ ( IV ) ] .

In classifying those who were killed as civilians , ORG is in no doubt about their status ; however , even supposing it were , LAW to LAW states that in case of doubt everyone shall be considered to be a civilian . ...

Since GPE has not acceded to LAW [ ( IV ) ] of DATE , the provisions of that instrument can not serve as a basis for [ finding ] a violation .

War crimes are prohibited and all countries are required to convict anyone guilty of them because such crimes are an integral part of international law , irrespective of whether the parties to the conflict were parties to international treaties . ... ”

ORG excluded CARDINAL allegations that had not been proved to the requisite standard , namely alleged murders and torture by the applicant himself . Given the finding of guilt of a serious offence and since he was by then aged , infirm and harmless , ORG imposed an immediate custodial sentence of DATE and DATE which he was deemed to have served given his pre - trial detention .

By a judgment of DATE , ORG dismissed the applicant ’s appeal :

“ ... In finding that PERSON was a combatant and had committed the offence in question on the territory occupied by the GPE , ORG based its judgment on the decisions of the higher representative bodies of GPE , on the relevant international conventions and on other evidence , taken as a whole , which had been verified and assessed in accordance with the rules of criminal procedure .

In the LAW by ORG ... of CARDINAL DATE on ORG , it was acknowledged that the ultimatum delivered on DATE to the government of GPE by the former NORP GPE should be regarded as an international crime , as GPE was occupied and its sovereign power abolished as a result . [ However , ] GPE continued to exist as a subject of international law , as was recognised by CARDINAL GPE worldwide ...

After analysing the merits of the judgment , the ORG ... considers that , to the extent that ORG found that GPE came within the scope of section CARDINAL of LAW , ... his acts were correctly characterised , as , in his capacity as a belligerent and combatant on NORP territory occupied by the GPE , he has violated the laws and customs of war , in that he planned and directed a military operation aimed at taking reprisals against civilians , namely peaceable inhabitants of the village of GPE , CARDINAL of whom were killed ... [ and ] whose property was stolen [ or ] burnt .

As ORG ( rightly ) noted , neither the fact that NORP territory was subjected to CARDINAL successive occupations in the Second World War by two States ( one of which was GPE ; a ‘ dual occupation’ in the words of ORG ) , nor the fact that the GPE was a member of an anti - PERSON coalition , changed PERSON GPE ’s status as a person guilty of a war crime .

As regards the allegation ... that , by finding PERSON guilty of the war crime in question the ORG [ of Appeal ] violated the provisions of section CARDINAL of LAW ... concerning the temporal applicability of the criminal law , the [ ORG ] considers that it must be rejected for the following reasons .

The judgment shows that ORG applied the conventions , namely LAW [ ( IV ) ] of CARDINAL DATE .. , and [ the First ] LAW [ to LAW ] of DATE ... , to the war crime which PERSON was accused of , irrespective of when they came into force . [ This is consistent ] with LAW of DATE on LAW . [ ORG stated ] that GPE , which had been occupied by the GPE , had not been able to take a decision [ to that end ] earlier . By referring to the principle of the non - applicability of statutory limitation , ORG complied with the obligations arising under the international treaties and held the persons guilty of committing the offences concerned criminally liable irrespective of the date they were perpetrated .

Since the judgment characterised the violation of the laws and customs of war of which PERSON was accused as a war crime within the meaning of the second paragraph , point ( b ) , of LAW for GPE ... , and , ... by virtue of the aforesaid LAW of CARDINAL DATE ... , war crimes ... are not subject to statutory limitation , ... the ORG finds that his acts were correctly found to come within section CARDINAL of LAW ...

There is no basis to the argument ... that ... the Declaration by ORG CARDINAL DATE on ORG and the Declaration by Parliament of DATE on the NORP of GPE were mere political pronouncements which the court was precluded from using as a basis for its judgment and which could not be given binding force retrospectively .

The [ ORG ] finds that both declarations constitute ORG constitutional acts of indisputable legality .

In its judgment , [ delivered after ] assessing the evidence examined at the hearing , [ ORG ] found that , in his capacity as a combatant , PERSON organised , commanded and led a Partisan military operation intent on taking reprisals through the massacre of the civilian population of the village of ORG and the pillage and destruction of the villagers’ farms . That being so , ORG rightly found that the acts of individual members of his group ... could not be seen as [ mere ] excesses on the part of those concerned .

In accordance with the criminal - law principles governing the responsibility of organised groups , members [ of a group ] are accomplices to the offence , independently of the role they play in its commission .

This principle of responsibility of the members of an organised group is recognised in the third paragraph of LAW for GPE , which lays down that leaders , organisers , instigators and accomplices participating in the execution of a common plan are responsible for all acts performed by any persons in the execution of that plan .

Consequently , the argument that ORG had used an ‘ objective responsibility’ test to find , in the absence of any evidence , PERSON guilty of acts perpetrated by members of the special group of Partisans he led , without examining his subjective attitude to the consequences , is unfounded . ... ”

By a decree of DATE , ORG of the NORP SSR replaced the existing NORP LAW with the DATE LAW NORP GPE , which code thereby became applicable in GPE ( “ the DATE LAW ” ) . The relevant provisions of that code during the Second World War were as follows :

“ This Code shall apply to all citizens of the RSFSR [ NORP Federative Socialist Republic ] who commit socially dangerous acts on the territory of the ORG , or outside the territory of the GPE if they are apprehended on the territory of the RSFSR . ”

“ The liability of citizens from the other NORP ORG Republics shall be determined in accordance with the laws of the RSFSR if they have committed offences either on the territory of the ORG or outside the territory of the GPE if they have been apprehended and handed over to a court or investigating authority on the territory of the RSFSR .

The liability of citizens of ORG for offences committed on the territory of the Union shall be determined in accordance with the laws of the place where the offence was committed . ”

“ The liability of aliens for offences committed on the territory of the GPE shall be determined in accordance with the laws of the place where the offence was committed . ”

Chapter IX of the DATE LAW was entitled “ Military crimes ” and included the following relevant provisions :

“ Military crimes are offences committed by military personnel in the service of ORG and ORG or ORG and ORG , or by persons assigned to maintenance teams or periodically conscripted into territorial detachments , [ when such offences ] are against the established order of military service and , owing to their nature and meaning , can not be committed by citizens not serving in the army or navy . ... ”

“ Any failure by a serviceman to execute a legitimate order issued in combat shall entail the application of measures for the protection of society in the form of DATE imprisonment .

Where such a failure has a deleterious effect on combat operations , the ultimate measure for the protection of society [ that is , the death penalty ] shall apply .

“ PERSON , that is to say divesting civilians of their belongings during combat by threatening them with weapons or on the pretext of requisitioning for military purposes , and removing personal belongings from the dead or injured for personal gain shall entail the application of the ultimate measure for the protection of society accompanied by confiscation of all the offender ’s belongings .

In the event of mitigating circumstances , [ the sentence shall be reduced to ] CARDINAL years’ imprisonment with strict solitary confinement . ”

“ Unlawful acts of violence by servicemen in wartime or during combat shall entail the application of measures for the protection of society in the form of DATE imprisonment with strict solitary confinement .

In the event of aggravating circumstances , the ultimate measure for the protection of society [ shall be applied ] . ”

Section CARDINAL ( and LAW thereto ) of the DATE LAW provided as follows :

“ Criminal proceedings may not be instituted where :

( a ) DATE have elapsed since the offence was committed , in the case of offences punishable by more than five years’ imprisonment and those for which the law prescribes a minimum term of DATE imprisonment ;

( b ) DATE have elapsed since the offence was committed , in the case of offences punishable by CARDINAL years’ imprisonment and those for which the law prescribes a minimum term of CARDINAL months’ imprisonment ;

( c ) DATE have elapsed since the offence was committed , in the case of all other offences .

The statute of limitations shall apply where no procedural steps or investigative measures have been taken in the case during the entire period and the perpetrator has not , during the period stipulated by this section , committed any other offence falling into the same category or of at least equivalent seriousness .

Note CARDINAL – In the case of prosecution for counter - revolutionary crimes , application of the statute of limitations in a given case is at the court ’s discretion . However , if the court finds that the statute of limitations can not be applied , the sentence of execution by shooting must be commuted either to a declaration that the person concerned is an enemy of the workers , accompanied by withdrawal of his or her citizenship of the GPE and lifelong banishment from the territory of the GPE , or to a term of imprisonment of not DATE .

Note CARDINAL – In the case of persons prosecuted for actively campaigning against the working class and the revolutionary movement in the exercise of high - level or secret duties under the NORP regime or in the service of the counter - revolutionary governments during the [ NORP ] Civil War , both the application of the statute of limitations and the commuting of the sentence of execution by shooting are at the discretion of the court .

Note CARDINAL – The limitation periods laid down by this section do not apply to acts prosecuted under the present Code by means of administrative proceedings . Coercive measures in respect of such acts may only be imposed within DATE of the acts being committed . ”

On DATE ORG of the NORP SSR replaced the DATE LAW with LAW , which came into force on DATE . The relevant provisions thereof read as follows :

“ It shall be an offence punishable by CARDINAL years’ imprisonment ... or death ... to organise armed gangs with a view to attacking ORG undertakings , private undertakings , the authorities , organisations or private individuals or to be a member of such gangs or participate in attacks perpetrated by them . ”

“ The offences set out in this code shall be deemed military crimes where they are committed by military personnel ... against the established order of military service . ... ”

“ It shall be an offence punishable by CARDINAL years’ imprisonment or death to foray , unlawfully destroy property , engage in acts of violence against the population of a region liable to attack or to seize property unlawfully on the pretext of military necessity . ”

Section CARDINAL of the CARDINAL Criminal Code stated that statutory limitation was not automatically applicable to crimes carrying the death penalty , but was within the discretion of the court .

The DATE LAW remained in force ( with some amendments ) after GPE regained its independence .

By a PERSON passed on DATE , ORG inserted into the special section of the DATE LAW a new LAW , which contained provisions criminalising acts such as genocide , crimes against humanity or peace , war crimes and racial discrimination .

A new section CARDINAL dealt with war crimes , and reads as follows :

“ Any person found guilty of a war crime as defined in the relevant legal conventions , that is to say violations of the laws and customs of war through murder , torture , pillaging from the civil population in an occupied territory or from hostages or prisoners of war , the deportation of such people or their subjection to forced labour , or the unjustified destruction of towns and installations , shall be liable to life imprisonment or to imprisonment for DATE . ”

The same PERSON also inserted section CARDINAL into LAW permitting the retrospective application of the criminal law with respect to crimes against humanity and war crimes :

“ Persons guilty of crimes against humanity , genocide , crimes against peace or war crimes may be convicted irrespective of when the crimes were committed . ”

Section CARDINAL - CARDINAL , inserted by the same PERSON into LAW , exempted such offences from limitation :

“ The statutory limitation of criminal liability shall not apply to persons guilty of crimes against humanity , genocide , crimes against peace or war crimes . ”

The DATE LAW was replaced by LAW on DATE . The substance of sections DATE , CARDINAL - CARDINAL and CARDINAL of the DATE LAW reappeared in the DATE LAW .

The laws of war were not only to be found in treaties , “ but in the customs and practices of GPE which gradually obtained universal recognition , and from the general principles of justice applied by jurists and practised by military courts ” .

The first Geneva Convention ( later superseded ) provided for minimum standards for “ wounded or sick combatants ” so that “ to whatever nation they may belong ” they had to be “ collected and cared for ” .

This Convention conferred protection and “ prisoner of war ” status on wounded and sick combatants in the power of the enemy . The relevant parts of ORG CARDINAL and CARDINAL provide as follows :

“ Officers , soldiers , and other persons officially attached to armies , who are sick or wounded , shall be respected and cared for , without distinction of nationality , by the belligerent in whose power they are .

“ Subject to the care that must be taken of them under DATE , the sick and wounded of an army who fall into the power of the other belligerent become prisoners of war , ... ”

This Convention ( replaced by LAW ( I ) of CARDINAL DATE ) responded to the experience of the First World War . It did not include a general participation clause . The relevant parts of ORG and CARDINAL read as follows :

“ Officers and soldiers and other persons officially attached to the armed forces who are wounded or sick shall be respected and protected in all circumstances ; they shall be treated with humanity and cared for medically , without distinction of nationality , by the belligerent in whose power they may be . ... ”

“ Except as regards the treatment to be provided for them in virtue of DATE , the wounded and sick of an army who fall into the hands of the enemy shall be prisoners of war , ... ”

This Convention provided a comprehensive set of rules for the treatment of prisoners of war . The First World War revealed deficiencies in the relevant provisions of the DATE LAW ( IV ) and its annexed Regulations ( see paragraphs CARDINAL - CARDINAL below ) which were to be supplemented by this Convention . It recognised that the entitlement to “ prisoner of war ” status was derived from holding the status of “ legal combatant ” under LAW . It introduced protections for prisoners of war and ensured that they were treated humanely . Women were the subject of special protection . The relevant provisions read as follows :

“ The present Convention shall apply without prejudice to the stipulations of Part VII :

To all persons referred to in ORG CARDINAL , CARDINAL and CARDINAL of the Regulations annexed to LAW ( IV ) of DATE , concerning ORG , who are captured by the enemy .

To all persons belonging to the armed forces of belligerents who are captured by the enemy in the course of operations of maritime or aerial war , subject to such exceptions ( derogations ) as the conditions of such capture render inevitable . Nevertheless these exceptions shall not infringe the fundamental principles of the present Convention ; they shall cease from the moment when the captured persons shall have reached a prisoners of war camp . ”

“ Prisoners of war are in the power of the hostile government , but not of the individuals or formation which captured them . They shall at all times be humanely treated and protected , particularly against acts of violence , from insults and from public curiosity . Measures of reprisal against them are forbidden . ”

“ Prisoners of war are entitled to respect for their persons and honour . Women shall be treated with all consideration due to their sex . Prisoners retain their full civil capacity . ”

“ Prisoners of war shall not be subjected by the military authorities or the tribunals of the detaining Power to penalties other than those which are prescribed for similar acts by members of the national forces . ... ”

“ Attempted escape , even if it is not a first offence , shall not be considered as an aggravation of the offence in the event of the prisoner of war being brought before the courts for crimes or offences against persons or property committed in the course of such attempt .

After an attempted or successful escape , the comrades of the escaped person who aided the escape shall incur only disciplinary punishment therefor . ”

This draft ORG set out to improve the standards of protection of enemy civilians living in occupied territory and on belligerent territory . It was due for discussion at a conference in DATE , but the Second World War intervened . The draft was later influential in the discussions on LAW ( IV ) and is notable for its negative definition of “ civilians ” ( consistent with the GPE DATE ) and for its distinction between “ combatants ” and “ civilians ” . Its LAW as follows :

“ Enemy civilians in the sense of the present Convention are persons fulfilling the CARDINAL following conditions :

( a ) that of not belonging to the land , maritime or air armed forces of the belligerents , as defined by international law , and in particular by ORG , CARDINAL and CARDINAL of the Regulations attached to FAC , of DATE , concerning ORG ;

( b ) that of being the national of an enemy country in the territory of a belligerent , or in a territory occupied by the latter . ”

Articles DATE and CARDINAL required protection of “ enemy civilians ” against violence and prohibited measures of reprisals against them .

The relevant part of this Convention provided as follows :

“ The present Convention shall apply to the persons referred to in DATE from the time they fall into the power of the enemy and until their final release and repatriation .

Should any doubt arise as to whether persons , having committed a belligerent act and having fallen into the hands of the enemy , belong to any of the categories enumerated in DATE , such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal . ”

Special protection was offered to expectant mothers in LAW :

“ The wounded and sick , as well as the infirm , and expectant mothers , shall be the object of particular protection and respect . As far as military considerations allow , each party to the conflict shall facilitate the steps taken to search for the killed and wounded , to assist the shipwrecked and other persons exposed to grave danger , and to protect them against pillage and ill - treatment . ”

Article CARDINAL includes specific protections from ill - treatment for persons in the power of the enemy and Article CARDINAL recognises a prohibition on collective penalties , pillage and reprisals against protected persons .

Article CARDINAL recognises that real or personal private property should not be destroyed unless absolutely necessary .

The Lieber Code DATE is regarded as the first attempt to codify the laws and customs of war . Although only applicable to NORP forces , it represented a summary of the laws and customs of war existing at the time and was influential in later codifications .

Articles DATE and CARDINAL included the rule that life or property could be seized or destroyed when required by military necessity ( see also LAW below ) :

“ Military necessity admits of all direct destruction of life or limb of ‘ armed’ enemies , and of other persons whose destruction is incidentally ‘ unavoidable’ in the armed contests of the war ; it allows of the capturing of every armed enemy , and every enemy of importance to the hostile government , or of peculiar danger to the captor ; it allows of all destruction of property , and obstruction of the ways and channels of traffic , travel , or communication , and of all withholding of sustenance or means of life from the enemy ; of the appropriation of whatever an enemy ’s country affords necessary for the subsistence and safety of the army , and of such deception as does not involve the breaking of good faith either positively pledged , regarding agreements entered into during the war , or supposed by the modern law of war to exist . Men who take up arms against one another in public war do not cease on this account to be moral beings , responsible to one another and to God . ”

“ Private property , unless forfeited by crimes or by offences of the owner , can be seized only by way of military necessity , for the support or other benefit of the army or of GPE .

Article CARDINAL contained a general standard of behaviour in armed conflict and a prohibition on perfidy :

“ Military necessity does not admit of cruelty – that is , the infliction of suffering for the sake of suffering or for revenge , nor of maiming or wounding except in fight , nor of torture to extort confessions . It does not admit of the use of poison in any way , nor of the wanton devastation of a district . It admits of deception , but disclaims acts of perfidy ; and , in general , military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult . ”

Articles DATE and DATE contained measures of special protection for women in the context of armed conflict :

“ Commanders , whenever admissible , inform the enemy of their intention to bombard a place , so that the non - combatants , and especially the women and children , may be removed ... ”

“ GPE acknowledge and protect , in hostile countries occupied by them , religion and morality ; strictly private property ; the persons of the inhabitants , especially those of women : and the sacredness of domestic relations . Offences to the contrary shall be rigorously punished .

Article CARDINAL contained the principle of distinction between “ combatants ” and “ civilians ” :

“ Nevertheless , as civilisation has advanced during DATE , so has likewise steadily advanced , especially in war on land , the distinction between the private individual belonging to a hostile country and the hostile country itself , with its men in arms . The principle has been more and more acknowledged that the unarmed citizen is to be spared in person , property , and honour as much as the exigencies of war will admit . ”

DATE . DATE contained a catalogue of offences and of severe punishments for a guilty soldier :

“ All wanton violence committed against persons in the invaded country , all destruction of property not commanded by the authorised officer , all robbery , all pillage or sacking , even after taking a place by main force , all rape , wounding , maiming , or killing of such inhabitants , are prohibited under the penalty of death , or such other severe punishment as may seem adequate for the gravity of the offence . A soldier , officer or private , in the act of committing such violence , and disobeying a superior ordering him to abstain from it , may be lawfully killed on the spot by such superior . ”

Article CARDINAL referred to punishment under domestic criminal codes :

“ Crimes punishable by all penal codes , such as arson , murder , maiming , assaults , highway robbery , theft , burglary , fraud , forgery , and rape , if committed by an NORP soldier in a hostile country against its inhabitants , are not only punishable as at home , but in all cases in which death is not inflicted , the severer punishment shall be preferred . ”

The PERSON illustrated the CARDINAL main rights of a “ combatant ” : “ prisoner of war ” status ( Article CARDINAL ) and protection from prosecution for certain acts which would be criminal for a civilian ( Article CARDINAL ) :

“ A prisoner of war is a public enemy armed or attached to the hostile army for active aid , who has fallen into the hands of the captor , either fighting or wounded , on the field or in the hospital , by individual surrender or by capitulation .

All soldiers , of whatever species of arms ; all men who belong to the rising en masse of the hostile country ; all those who are attached to the army for its efficiency and promote directly the object of the war , except such as are hereinafter provided for ; all disabled men or officers on the field or elsewhere , if captured ; all enemies who have thrown away their arms and ask for DATE , are prisoners of war , and as such exposed to the inconveniences as well as entitled to the privileges of a prisoner of war . ”

“ So soon as a man is armed by a sovereign government and takes the soldier ’s oath of fidelity , he is a belligerent ; his killing , wounding , or other warlike acts are not individual crimes or offences . No belligerent has a right to declare that enemies of a certain class , colour , or condition , when properly organised as soldiers , will not be treated by him as public enemies . ”

The notion of levée en masse was covered in LAW

“ If the people of that portion of an invaded country which is not yet occupied by the enemy , or of the whole country , at the approach of a hostile army , rise , under a duly authorised levy ‘ en ORG to resist the invader , they are now treated as public enemies , and , if captured , are prisoners of war . ”

Article CARDINAL indicated individual criminal responsibility for violations of the laws and customs of war :

“ A prisoner of war remains answerable for his crimes committed against the captor ’s army or people , committed before he was captured , and for which he has not been punished by his own authorities . All prisoners of war are liable to the infliction of retaliatory measures . ”

Articles DATE asserted that the use of enemy uniforms was outlawed as an act of perfidy , removing the protections of the laws and customs of war from persons who engaged in such conduct :

“ Troops who fight in the uniform of their enemies , without any plain , striking , and uniform mark of distinction of their own , can expect DATE . ”

“ If NORP troops capture a train containing uniforms of the enemy , and the commander considers it advisable to distribute them for use among his men , some striking mark or sign must be adopted to distinguish the NORP soldier from the enemy . ”

“ The use of the enemy ’s national standard , flag , or other emblem of nationality , for the purpose of deceiving the enemy in battle , is an act of perfidy by which they lose all claim to the protection of the laws of war . ”

Together with Article CARDINAL , Article CARDINAL described a particular status later referred to as hors de combat under international law :

“ Whoever intentionally inflicts additional wounds on an enemy already wholly disabled , or kills such an enemy , or who orders or encourages soldiers to do so , shall suffer death , if duly convicted , whether he belongs to the army of GPE , or is an enemy captured after having committed his misdeed . ”

Articles DATE and CARDINAL created obligations to treat prisoners of war with humanity and proportionately in the event of an escape attempt :

“ Prisoners of war shall be fed upon plain and wholesome food , whenever practicable , and treated with humanity .

“ A prisoner of war who escapes may be shot or otherwise killed in his flight ; but neither death nor any other punishment shall be inflicted upon him simply for his attempt to escape , which the law of war does not consider a crime . Stricter means of security shall be used after an unsuccessful attempt at escape .

DATE . Article CARDINAL contained a prohibition of treacherous wounding ( at the time understood to be the same as perfidious wounding ) :

“ While deception in war is admitted as a just and necessary means of hostility , and is consistent with honourable warfare , the common law of war allows even capital punishment for clandestine or treacherous attempts to injure an enemy , because they are so dangerous , and it is difficult to guard against them . ”

Articles CARDINAL and ORG contained provisions for punishing spies :

“ A spy is a person who secretly , in disguise or under false pretence , seeks information with the intention of communicating it to the enemy . The spy is punishable with death by hanging by the neck , whether or not he succeed in obtaining the information or in conveying it to the enemy . ”

“ A successful spy or war - traitor , safely returned to his own army , and afterwards captured as an enemy , is not subject to punishment for his acts as a spy or war - traitor , but he may be held in closer custody as a person individually dangerous . ”

This declaration was the first formal agreement prohibiting the use of certain weapons in war . The Preamble recalled CARDINAL principles of the laws and customs of war : the only legitimate object during war is to weaken the military forces of the enemy ; there is a limit to the means which can be employed against enemy forces ; and the laws and customs of war do not condone violence against those hors de combat .

This declaration was never adopted at the diplomatic conference in GPE in DATE , although it was another influential codification exercise . The relevant Articles of the declaration read as follows :

“ The laws , rights , and duties of war apply not only to armies , but also to militia and volunteer corps fulfilling the following conditions :

NORP That they be commanded by a person responsible for his subordinates ;

NORP That they have a fixed distinctive emblem recognisable at a distance ;

NORP That they carry arms openly ; and

NORP That they conduct their operations in accordance with the laws and customs of war . In countries where militia constitute the army , or form part of it , they are included under the denomination ‘ NORP . ”

“ The population of a territory which has not been occupied , who , on the approach of the enemy , spontaneously take up arms to resist the invading troops without having had time to organise themselves in accordance with LAW , shall be regarded as belligerents if they respect the laws and customs of war . ”

“ The laws of war do not recognise in belligerents an unlimited power in the adoption of means of injuring the enemy . ”

“ According to this principle are especially ‘ ORG :

( b ) Murder by treachery of individuals belonging to the hostile nation or army ;

( c ) Murder of an enemy who , having laid down his arms or having no longer means of defence , has surrendered at discretion ;

( e ) NORP The employment of arms , projectiles or material calculated to cause unnecessary suffering , as well as the use of projectiles prohibited by LAW ;

( f ) Making improper use of a flag of truce , of the national flag or of the military insignia and uniform of the enemy , as well as the distinctive badges of LAW ;

( g ) Any destruction or seizure of the enemy ’s property that is not imperatively demanded by the necessity of war . ”

“ A spy taken in the act shall be tried and treated according to the laws in force in the army which captures him . ”

“ Prisoners of war are lawful and disarmed enemies . They are in the power of the hostile government , but not in that of the individuals or corps who captured them . They must be humanely treated . Any act of insubordination justifies the adoption of such measures of severity as may be necessary . All their personal belongings except arms shall remain their property . ”

“ Prisoners of war are subject to the laws and regulations in force in the army in whose power they are . Arms may be used , after summoning , against a prisoner of war attempting to escape . If recaptured he is liable to disciplinary punishment or subject to a stricter surveillance .

If , after succeeding in escaping , he is again taken prisoner , he is not liable to punishment for his previous acts . ”

NORP The GPE DATE , influenced by LAW DATE and drafted by ORG , was designed to assist governments in formulating national legislation on the laws and customs of war . The relevant Articles read as follows :

“ The state of war does not admit of acts of violence , save between the armed forces of belligerent GPE . Persons not forming part of a belligerent armed force should abstain from such acts . This rule implies a distinction between the individuals who compose the ‘ armed force’ of a ORG and its other ‘ PERSON . A definition of the term ‘ armed force’ is , therefore , necessary . ”

“ The armed force of a ORG includes :

NORP The army properly so called , including the militia ;

NORP The national guards , landsturm , free corps , and other bodies which fulfil the CARDINAL following conditions :

( a ) That they are under the direction of a responsible chief ;

( b ) That they must have a uniform , or a fixed distinctive emblem recognisable at a distance , and worn by individuals composing such corps ;

( c ) That they carry arms openly ;

The crews of men - of - war and other military boats ;

The inhabitants of non - occupied territory , who , on the approach of the enemy , take up arms spontaneously and openly to resist the invading troops , even if they have not had time to organise themselves . ”

“ Every belligerent armed force is bound to conform to the laws of war .

“ The laws of war do not recognise in belligerents an unlimited liberty as to the means of injuring the enemy . They are to abstain especially from all needless severity , as well as from all perfidious , unjust , or tyrannical acts . ”

“ It is forbidden :

( b ) To make treacherous attempts upon the life of an enemy ; as , for example , by keeping assassins in pay or by feigning to surrender ;

( c ) To attack an enemy while concealing the distinctive signs of an armed force ;

( d ) To make improper use of the national flag , military insignia or uniform of the enemy , of the flag of truce and of the protective signs prescribed by the ‘ GPE Convention’ . ”

“ It is forbidden :

( b ) To injure or kill an enemy who has surrendered at discretion or is disabled , and to declare in advance DATE will not be given , even by those who do not ask it for themselves . ”

“ Individuals who form a part of the belligerent armed force , if they fall into the hands of the enemy , are to be treated as prisoners of war , in conformity with Articles CARDINAL et seq . ... ”

The section containing Articles CARDINAL to CARDINAL was entitled “ NORP ” and dealt with their treatment :

Individuals captured as spies can not demand to be treated as prisoners of war .

But :

Individuals may not be regarded as spies , who , belonging to the armed force of either belligerent , have penetrated , without disguise , into the zone of operations of the enemy , – nor bearers of official dispatches , carrying out their mission openly , nor aeronauts ( LAW ) .

In order to avoid the abuses to which accusations of espionage too often give rise in war it is important to assert emphatically that :

No person charged with espionage shall be punished until the judicial authority shall have pronounced judgment .

Moreover , it is admitted that :

A spy who succeeds in quitting the territory occupied by the enemy incurs no responsibility for his previous acts , should he afterwards fall into the hands of that enemy . ”

Article CARDINAL ( b ) prohibited , inter alia , the destruction of public or private property , if this destruction was “ not demanded by an imperative necessity of war ” .

Chapter III outlined the rules for captivity of prisoners of war . It described the legal basis for their detention ( it was not a punishment or vengeance ) ; it provided that they must be treated humanely ( Article CARDINAL ) and that arms could be used only if the prisoner attempted to flee ( Article CARDINAL ) .

Part III of the ORG provided for punishments for violations of the rules in the manual and , in the event that the alleged offender could not be detained , the manual outlined the limited circumstances for legitimate belligerent reprisals :

“ If any of the foregoing rules be violated , the offending parties should be punished , after a judicial hearing , by the belligerent in whose hands they are . Therefore :

Offenders against the laws of war are liable to the punishments specified in the penal law .

This mode of repression , however , is only applicable when the person of the offender can be secured . In the contrary case , the criminal law is powerless , and , if the injured party deem the misdeed so serious in character as to make it necessary to recall the enemy to a respect for law , no other recourse than a resort to reprisals remains . Reprisals are an exception to the general rule of equity , that an innocent person ought not to suffer for the guilty . They are also at variance with the rule that each belligerent should conform to the rules of war , without reciprocity on the part of the enemy . This necessary rigour , however , is modified to some extent by the following restrictions :

Reprisals are formally prohibited in case the injury complained of has been repaired .

In grave cases in which reprisals appear to be absolutely necessary , their nature and scope shall never exceed the measure of the infraction of the laws of war committed by the enemy . They can only be resorted to with the authorisation of the commander in chief . They must conform in all cases to the laws of humanity and morality . ”

The International Peace Conference in the GPE in DATE resulted in the adoption of CARDINAL conventions including LAW ) with PERSON to the Laws and Customs of War on Land and its annexed LAW . These instruments were replaced , following the second Hague International Peace Conference in DATE , by the DATE LAW ( IV ) and LAW ( together “ the DATE LAW ( IV ) and Regulations ” ) . They were based on ORG DATE and the GPE DATE .

The Preamble to the DATE LAW ( IV ) reads as follows :

“ Seeing that while seeking means to preserve peace and prevent armed conflicts between nations , it is likewise necessary to bear in mind the case where the appeal to arms has been brought about by events which their care was unable to avert ;

Animated by the desire to serve , even in this extreme case , the interests of humanity and the ever progressive needs of civilisation ;

Thinking it important , with this object , to revise the general laws and customs of war , either with a view to defining them with greater precision or to confining them within such limits as would mitigate their severity as far as possible ;

Have deemed it necessary to complete and explain in certain particulars the work of ORG , which , following on ORG of DATE , and inspired by the ideas dictated by a wise and generous forethought , adopted provisions intended to define and govern the usages of war on land .

According to the views of the High Contracting Parties , these provisions , the wording of which has been inspired by the desire to diminish the evils of war , as far as military requirements permit , are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants .

It has not , however , been found possible at present to concert regulations covering all the circumstances which arise in practice ;

On the other hand , the High Contracting Parties clearly do not intend that unforeseen cases should , in the absence of a written undertaking , be left to the arbitrary judgment of military commanders .

Until a more complete code of the laws of war has been issued , the High Contracting Parties deem it expedient to declare that , in cases not included in the Regulations adopted by them , the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations , as they result from the usages established among civilised peoples , from the laws of humanity , and the dictates of the public conscience .

They declare that it is in this sense especially that ORG CARDINAL and CARDINAL of the Regulations adopted must be understood . ”

The eighth paragraph of the Preamble cited above is known as the “ FAC ” . An almost identical clause had already been included in the Preamble to the DATE LAW ) and it was in substance repeated in each of the DATE LAW ( I - IV ) as well as in the DATE LAW ( see paragraphs CARDINAL below ) .

DATE LAW ( IV ) contained a “ si omnes ” solidarity clause to the effect that the DATE LAW ( IV ) and Regulations only applied between GPE and then only if all the belligerents were ORG . However , ORG ( ORG ) GPE judgment later confirmed that by DATE the CARDINAL Hague Convention ( IV ) and Regulations were regarded as being declaratory of the laws and customs of war ( see CARDINAL and CARDINAL below ) .

The other relevant provisions of the DATE LAW ( IV ) provide as follows :

“ The Contracting Powers shall issue instructions to their armed land forces which shall be in conformity with the Regulations respecting the laws and customs of war on land , annexed to the present Convention . ”

“ A belligerent party which violates the provisions of the said Regulations shall , if the case demands , be liable to pay compensation . It shall be responsible for all acts committed by persons forming part of its armed forces . ”

Articles CARDINAL and CARDINAL of LAW read as follows :

“ The laws , rights , and duties of war apply not only to armies , but also to militia and volunteer corps fulfilling the following conditions :

To be commanded by a person responsible for his subordinates ;

To have a fixed distinctive emblem recognisable at a distance ;

To carry arms openly ; and

To conduct their operations in accordance with the laws and customs of war . In countries where militia or volunteer corps constitute the army , or form part of it , they are included under the denomination ‘ NORP . ”

“ The inhabitants of a territory which has not been occupied , who , on the approach of the enemy , spontaneously take up arms to resist the invading troops without having had time to organise themselves in accordance with LAW , shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war . ”

Chapter II ( ORG CARDINAL - CARDINAL ) of LAW included the rules identifying prisoners of war , the requirement to treat prisoners of war humanely ( DATE ) and the limitation of any measures taken for insubordination to those necessary ( LAW . The ORG continued :

“ The right of belligerents to adopt means of injuring the enemy is not unlimited . ”

“ In addition to the prohibitions provided by special conventions , it is especially forbidden

( b ) To kill or wound treacherously individuals belonging to the hostile nation or army ;

( c ) To kill or wound an enemy who , having laid down his arms , or having no longer means of defence , has surrendered at discretion ;

( e ) To employ arms , projectiles , or material calculated to cause unnecessary suffering ;

( f ) To make improper use of a flag of truce , of the national flag or of the military insignia and uniform of the enemy , as well as the distinctive badges of LAW ;

( g ) To destroy or seize the enemy ’s property , unless such destruction or seizure be imperatively demanded by the necessities of war ;

( h ) To declare abolished , suspended , or inadmissible in a court of law the rights and actions of the nationals of the hostile party . ... ”

“ A person can only be considered a spy when , acting clandestinely or on false pretences , he obtains or endeavours to obtain information in the zone of operations of a belligerent , with the intention of communicating it to the hostile party . ... ”

“ A spy taken in the act shall not be punished without previous trial . ”

“ A spy who , after rejoining the army to which he belongs , is subsequently captured by the enemy , is treated as a prisoner of war , and incurs no responsibility for his previous acts of espionage . ”

This Commission was tasked by ORG to prepare a report , inter alia , on facts concerning breaches of the laws and customs of war by the forces of the NORP Empire and allies ( including NORP officials ) , on the degree of responsibility for such offences attaching to members of the enemy forces as well as on the constitution and procedure of a tribunal appropriate for the trial of such offences . The report was completed in DATE and it drew up a list of CARDINAL alleged war criminals and proposed charges against NORP officials and others for “ crimes against the laws of humanity ” , relying on ORG ) . It also drew up a nonexhaustive list of CARDINAL offences committed during the war regarded as contrary to existing conventions and customs including : murders and massacres ; torture of civilians ; the imposition of collective penalties ; wanton devastation and destruction of property ; as well as the illtreatment of wounded and prisoners of war .

As regards individual criminal liability , the ORG stated :

“ All persons belonging to enemy countries , however their position may have been , without distinction of rank , including ORG , who have been guilty of offences against the laws and customs of war or the laws of humanity , are liable to criminal prosecution . ”

The Treaty of Versailles DATE contained a number of provisions providing for the international trial and punishment of war criminals , including the NORP Emperor . The prosecution provisions were never applied : the Emperor ’s extradition was refused and an international trial of other alleged war criminals was dropped in favour of a trial by GPE itself . Article CARDINAL also retained the possibility of bringing persons guilty of criminal acts , against the nationals of CARDINAL of the ORG and Associated Powers , before the military tribunals of that Power .

The Treaty of Sèvres CARDINAL ( the peace agreement between ORG and GPE following the First World War ) , contains similar provisions ( Articles CARDINAL - CARDINAL ) to those outlined in LAW DATE as regards the pursuit before military tribunals by ORG officials accused of acts violating the laws and customs of war . This treaty was never ratified and was superseded by a Declaration of Amnesty ( signed on DATE , the same date as LAW DATE ) by GPE , GPE , GPE , GPE , GPE , GPE and GPE . The declaration provided that GPE and GPE granted “ full and complete amnesty ... for all crimes or offences committed during the same period which were evidently connected with the political events which have taken place during that period ” ( the relevant period being DATE to CARDINAL DATE ) .

This draft Convention was prepared by ORG but never adopted by ORG . Its negative definition of a civilian population was consistent with the definition in the LOC DATE :

“ The civilian population of a ORG shall not form the object of an act of war . The phrase ‘ civilian population’ within the meaning of this Convention shall include all those not enlisted in any branch of the combatant services nor for the time being employed or occupied in any belligerent establishment as defined in LAW . ”

In DATE and DATE GPE courts martial tried a number of GPE military personnel accused of , inter alia , violations of the laws of war during the GPE counter - insurgency campaign in the GPE and , notably , of extrajudicial executions . Few in number , the submissions of LAW and the reviewing authorities contained comments on the laws and customs of war on matters including the responsibility of commanding officers and the treatment of prisoners of war . These comments were influential in later codifications . The trials constituted an early example of prosecutions at a national level of national military personnel accused of crimes against the enemy contrary to the laws of war .

In the trial of Major PERSON , the reviewing authority observed :

“ ... the laws of war do not sanction , and the spirit of the age will not suffer that any officer may , upon the dictates of his own will , inflict death upon helpless prisoners committed to his care . Any other view looks to the method of the savage and away from the reasonable demand of civilised nations that war shall be prosecuted with the least possible cruelty and injustice . ”

NORP In Major PERSON ’s case , the judge advocate pointed out that , even if GPE soldiers were operating in a difficult situation against isolated bands of insurgents acting as guerrillas in flagrant disregard of the rules of civilised war , they were not relieved of “ their obligation to adhere to the rules of war in the efforts put forth by them ... to suppress the insurrection and restore public order ” .

At the trial of Lieutenant PERSON for the murder of a prisoner of war , the judge advocate noted that there existed a “ state of public war ” in the GPE and that the culpability of the accused should therefore have been determined not by the lex loci but from the standpoint of international law which , in that case , meant the rules and customs of war .

Further to LAW DATE , GPE brought proceedings against persons before ORG in GPE . The Allies presented CARDINAL cases ( out of the almost CARDINAL files included in ORG DATE ) concerning the treatment of prisoners of war and the wounded as well as an order to torpedo a NORP hospital ship . The trials took place in DATE . CARDINAL trials took place in DATE resulting in CARDINAL acquittals and CARDINAL convictions ( the sentences imposed being symbolic ) . The ORG decided to refer no more cases to the NORP courts .

The convictions relied mainly on NORP military law but there were some express references to international law , notably in the LOC decision :

“ The firing on the boats was an offence against the law of nations . In war on land the killing of unarmed enemies is not allowed [ LAW ] , ( [ Article ] CARDINAL ) ) , similarly in war at sea , the killing of shipwrecked people , who have taken refuge in life - boats , is forbidden . ... Any violation of the law of nations in warfare is , as the ORG has already pointed out , a punishable offence , so far as in general , a penalty is attached to the deed . The killing of enemies in war is in accordance with the will of the ORG that makes war ( whose laws as to the legality or illegality on the question of killing are decisive ) , only in so far as such killing is in accordance with the conditions and limitations imposed by the law of nations . ... The rule of international law , which is here involved , is simple and universally known . No possible doubt can exist with regard to the question of its applicability . The court must in this instance affirm GPE ’s guilt of killing contrary to international law . ”

GPE made considerable efforts to prosecute NORP officers for ill - treating prisoners of war and for other crimes during the First World War . GPE was in favour of the crimes being prosecuted by NORP courts martial in the occupied territories since the crimes were not “ within the sphere of municipal law ” but were governed by “ the customs of war and rules of international law ” . A number of courts martial were launched in DATE , but intervening domestic considerations in GPE prevented them being pursued . NORP courts martial were also held and , while they were charged on the basis of LAW , certain convictions were based on “ humanity and civilisation ” . As noted above , LAW DATE put an end to these prosecutions .

In DATE the representatives of the exiled governments of GPE and GPE made allegations of violations of the laws of war against NORP troops . For the NORP Prime Minister , the prosecution of war crimes was part of the war effort : indeed , it was so for all GPE occupied by GPE and for GPE as regards NORP occupying troops . In DATE representatives from territories occupied by ORG forces adopted in GPE LAW . Its Preamble recalled that international law and , in particular , the DATE LAW ( IV ) , did not permit belligerents in occupied countries to perpetrate acts of violence against civilians , to bring into disrepute laws in force or to overthrow national institutions . The declaration continued as follows :

“ The undersigned representatives ...

Affirm that acts of violence thus perpetrated against civilian populations are at variance with accepted ideas concerning acts of war and political offences as these are understood by civilised nations ;

Place amongst their principal war aims punishment through the channel of organised justice of those guilty and responsible for these crimes , whether they have ordered them , perpetrated them or in any way participated in them ;

Determine in the spirit of international solidarity to see to it that ( a ) those guilty and responsible , whatever their nationality , are sought for , handed over to justice and judged ; ( b ) that sentences pronounced are carried out . ”

Following this declaration , ORG ( ORG ) was established in DATE . It was to compile evidence of war crimes which files served as warrants for prosecution by military authorities of those accused . By the end of its mandate it had succeeded in compiling CARDINAL files concerning persons suspected of war crimes . The Commission adopted in full the list of offences in ORG DATE ( see paragraph CARDINAL above ) to be adapted where appropriate to the conditions of the Second World War .

DATE the GPE informed all countries with which it had maintained diplomatic relations of the war crimes committed by , in particular , NORP GPE in the occupied territories . In order to record the crimes allegedly committed by the NORP forces and to establish the identity of those guilty so as to bring them to justice , a decree dated DATE established the “ ORG for ascertaining and investigating crimes perpetrated by the ORG invaders and their accomplices , and the damage inflicted by them on citizens , collective farms , social organisations , ORG enterprises and institutions of the GPE ” . The Commission ’s work was used in the later “ LOC ” and “ GPE ” trials ( see paragraphs CARDINAL and CARDINAL below ) .

The first trials of GPE citizens ( accomplices and active assistants of the NORP forces ) took place at FAC in DATE . The accused were charged and convicted by GPE criminal courts of murder and treason under LAW .

The subsequent Moscow Declaration of GPE , GPE and the GPE ( “ the Mocow Declaration CARDINAL ” ) was one of the most significant declarations of the Second World War concerning the prosecution of war criminals . It confirmed the legitimate role of national courts in punishing war criminals and the intention to pursue such prosecutions after the war . It read , in so far as relevant , as follows :

“ ... the aforesaid CARDINAL ORG , speaking in the interest of the CARDINAL ORG , hereby solemnly declare and give full warning of their declaration as follows :

At the time of granting of any armistice to any government which may be set up in GPE , those NORP officers and men and members of the NORP party who have been responsible for or have taken a consenting part in the above atrocities , massacres and executions will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of free governments which will be erected therein . ...

Thus , NORP who take part in wholesale shooting of NORP officers or in the execution of NORP , NORP , NORP or NORP hostages or NORP peasants , or who have shared in slaughters inflicted on the people of GPE or in territories of GPE which are now being swept clear of the enemy , will know they will be brought back to the scene of their crimes and judged on the spot by the peoples whom they have outraged .

Let those who have hitherto not imbued their hands with innocent blood beware lest they join the ranks of the guilty , for most assuredly the CARDINAL ORG will pursue them to the uttermost ends of the earth and will deliver them to their accusers in order that justice may be done .

The above declaration is without prejudice to the case of NORP criminals whose offences have no particular geographical localisation and who will be punished by joint decision of the government of the ORG . ”

This latter provision envisaged the prosecution of NORP war criminals by the GPE and the first trial took place at GPE in DATE . The Presidium of ORG had issued a decree in DATE laying down the punishments to be applied . The indictment alleged that they were responsible for having gassed CARDINAL of inhabitants of GPE and its region , of committing brutal atrocities against civilians , of having burnt villages and exterminated women , old people and children as well as of having executed , burnt alive and tortured the wounded and prisoners of war . The prosecution relied on the rules of war laid down by international conventions ( LAW ( IV ) and Regulations and the DATE LAW , noting that GPE had ratified both ) and universally accepted provisions of international law . The indictment not only referred to the responsibility of ORG , but to the individual responsibility of the accused ( referring to the “ GPE trials ” ) . After admitting their own and their hierarchical ORG guilt , the CARDINAL accused were sentenced to death by hanging . The fairness of the trials may have been called into question later , but they were widely reported . The GPE awaited the end of the war before resuming such trials : trials were also held in GPE , GPE , GPE , GPE , GPE , GPE , PERSON and GPE .

As soon as the territories of GPE had been liberated from NORP forces , ORG in DATE convicted CARDINAL NORP of war crimes in application of the Moscow Declaration CARDINAL .

This comprehensive manual was compiled by ORG in DATE and issued to forces in the field . It contains both customary rules of war and rules arising from treaties to which GPE was party and interprets rules of armed conflict applicable to GPE military forces at that time . It described the “ Basic principles ” as follows :

“ Among the so - called unwritten rules or laws of war are CARDINAL interdependent basic principles that underlie all of the other rules or laws of civilised warfare , both written and unwritten , and form the general guide for conduct where no more specific rule applies , to wit :

( a ) The principle of military necessity , under which , subject to the principles of humanity and chivalry , a belligerent is justified in applying any amount and any kind of force to compel the complete submission of the enemy with the least possible expenditure of time , life , and money ;

( b ) The principle of humanity , prohibiting employment of any such kind or degree of violence as is not actually necessary for the purpose of the war ; and

( c ) The principle of chivalry which denounces and forbids resort to dishonourable means , expedients , or conduct . ”

Paragraph CARDINAL of the manual provided that :

“ General division of enemy population : The enemy population is divided in war into CARDINAL general classes , known as the armed forces and the peaceful population . Both classes have distinct rights , duties , and disabilities , and no person can belong to both classes at CARDINAL and the same time . ”

NORP The manual continued at CARDINAL , CARDINAL and CARDINAL :

“ Determination of status of captured troops : The determination of the status of captured troops is to be left to higher military authority or to military tribunals . Summary executions are no longer contemplated under the laws of war . The officer ’s duty is to hold the persons of those captured and leave the question of their being regulars , irregulars , deserters , etc . , to the determination of competent authority .

Hostilities committed by individuals not of the armed forces : Persons who take up arms and commit hostilities without having complied with the conditions prescribed by the laws of war for recognition as belligerents are , when captured by the injured party , liable to punishment as war criminals . ...

Right of trial : No individual should be punished for an offence against the laws of war unless pursuant to a sentence imposed after trial and conviction by a military court or commission or some other tribunal of competent jurisdiction designated by the belligerent . ”

In DATE eight undercover NORP saboteurs travelled to GPE , were captured and tried by a secret military commission on , inter alia , charges of offences contrary to the law of war ( including wearing of civilian clothes to move by deception behind enemy lines to commit acts of sabotage , espionage “ and other hostile acts ” ) . Their lawyers took a writ of habeas corpus to ORG , which court stated as follows :

“ By universal agreement and practice , the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants . Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces . Unlawful combatants are likewise subject to capture and detention , but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful . The spy who secretly and without uniform passes the military lines of a belligerent in time of war , seeking to gather military information and communicate it to the enemy , or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property , are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war , but to be offenders against the law of war subject to trial and punishment by military tribunals . ”

LAW concerned the occupation and reconstruction of GPE and other nations following the NORP surrender of DATE . It was drafted and adopted by the GPE , GPE and GPE at FAC DATE and DATE . As regards the pursuit of war criminals , the Agreement provided as follows :

“ ORG have taken note of the discussions which have been proceeding in DATE in GPE between NORP , GPE , NORP and NORP representatives with a view to reaching agreement on the methods of trial of those major war criminals whose crimes under LAW of DATE have no particular geographical localisation . ORG reaffirm their intention to bring these criminals to swift and sure justice . They hope that the negotiations in GPE will result in speedy agreement being reached for this purpose , and they regard it as a matter of great importance that the trial of these major criminals should begin at the earliest possible date . The first list of defendants will be published before DATE . ”

Following the unconditional surrender of GPE , ORG signed LAW :

“ Whereas ORG have from time to time made declarations of their intention that war criminals shall be brought to justice ;

And whereas LAW of the DATE on NORP atrocities in occupied LOC stated that those NORP officers and men and members of ORG who have been responsible for or have taken a consenting part in atrocities and crimes will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free governments that will be created therein ;

And whereas this declaration was stated to be without prejudice to the case of major criminals whose offences have no particular geographical location and who will be punished by the joint decision of the governments of the Allies ;

“ There shall be established after consultation with ORG for GPE an ORG for the trial of war criminals whose offences have no particular geographical location whether they be accused individually or in their capacity as members of the organisations or groups or in both capacities . ”

“ The constitution , jurisdiction and functions of ORG shall be those set in the LAW annexed to this LAW , which LAW shall form an integral part of this Agreement . ”

“ Nothing in this Agreement shall prejudice the provisions established by LAW concerning the return of war criminals to the countries where they committed their crimes . ”

“ Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court established or to be established in any ORG territory or in GPE for the trial of war criminals . ”

The Charter was annexed to ORG . It provided , inter alia , a non - exhaustive list of violations of the laws and customs of war for which “ [ l]eaders , organisers , instigators and accomplices ” were liable and it prescribed the penalties :

“ In pursuance of the Agreement signed on DATE by ORG , ORG and GPE and ORG , there shall be established an ORG ( hereinafter called ‘ the Tribunal’ ) for the just and prompt trial and punishment of the major war criminals of ORG . ”

“ The ORG established by the Agreement referred to in DATE hereof for the trial and punishment of the major war criminals of the LOC countries shall have the power to try and punish persons who , acting in the interests of the LOC countries , whether as individuals or as members of organisations , committed any of the following crimes .

The following acts , or any of them , are crimes coming within the jurisdiction of the ORG for which there shall be individual responsibility :

( 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 labour 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 ;

Leaders , organisers , instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan . ”

“ The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility , but may be considered in mitigation of punishment if the ORG determines that justice so requires . ”

“ The ORG shall have the right to impose upon a Defendant , on conviction , death or such other punishment as shall be determined by it to be just . ”

“ In addition to any punishment imposed by it , the ORG shall have the right to deprive the convicted person of any stolen property and order its delivery to ORG for GPE . ”

The judgment of the ORG GPE referred extensively to the customary nature of the DATE LAW ( IV ) and Regulations :

“ The ORG is ... bound by the LAW , in the definition which it gives both of war crimes and crimes against humanity . With respect to war crimes , the crimes defined by LAW b ) of the LAW were already recognised as war crimes under international law . They were covered by Articles CARDINAL , CARDINAL , DATE , and CARDINAL of LAW [ ( IV ) ] of DATE , and ORG , DATE , DATE , DATE and CARDINAL of LAW of DATE . That violations of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit of argument .

But it is argued that LAW does not apply in this case , because of the ‘ general participation’ clause in [ its ] LAW . ...

Several of the belligerents in the recent war were not parties to this Convention .

In the opinion of the ORG it is not necessary to decide this question . The rules of land warfare expressed in the LAW undoubtedly represented an advance over existing international law at the time of their adoption . But the ORG expressly stated that it was an attempt ‘ to revise the general laws and customs of war’ , which it thus recognised to be then existing , but by DATE these rules laid down in the Convention were recognised by all civilised nations , and were regarded as being declaratory of the laws and customs of war which are referred to in LAW b ) of the LAW . ”

In the section dealing with “ the law of the Charter ” and in dealing with the crime against peace , the judgment noted :

“ LAW [ ( IV ) ] DATE prohibited resort to certain methods of waging war . These included the inhumane treatment of prisoners , the employment of poisoned weapons , the improper use of flags of truce , and similar matters . Many of these prohibitions had been enforced long before the date of the Convention ; but since DATE they have certainly been crimes , punishable as offences against the laws of war ; yet LAW [ ( IV ) ] nowhere designates such practices as criminal , nor is any sentence prescribed , nor any mention made of a court to try and punish offenders . For DATE , however , military tribunals have tried and punished individuals guilty of violating the rules of land warfare laid down by this Convention . ... In interpreting the words of the [ ORG ] , it must be remembered that international law is not the product of an international legislature , and that such international agreements as the [ ORG ] have to deal with general principles of law , and not with administrative matters of procedure . The law of war is to be found not only in treaties , but in the customs and practices of GPE which gradually obtained universal recognition , and from the general principles of justice applied by jurists and practised by military courts . This law is not static , but by continual adaptation follows the needs of a changing world . Indeed , in many cases treaties do no more than express and define for more accurate reference the principles of law already existing . ”

This Charter was approved by unilateral declaration of the Supreme Commander of ORG on DATE . The relevant parts of LAW provide as follows :

“ The ORG shall have the power to try and punish NORP war criminals who as individuals or as members of organisations are charged with offences which include crimes against peace .

( b ) Conventional war crimes : Namely , violations of the laws or customs of war ;

( c ) ... Leaders , organisers , instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of such plan . ”

As to the status of the DATE LAW ( IV ) , the judgment of the ORG GPE of CARDINAL DATE stated as follows :

“ ... The effectiveness of some of the conventions signed at GPE on DATE as direct treaty obligations was considerably impaired by the incorporation of a so - called ‘ general participation clause’ in them , providing that the [ LAW [ ( IV ) ] would be binding only if all the Belligerents were parties to it . The effect of this clause , is , in strict law , to deprive some of the conventions of their binding force as direct treaty obligations , either from the very beginning of a war or in the course of it as soon as a non - signatory Power , however insignificant , joins the ranks of the Belligerents . Although the obligation to observe the provisions of the [ Hague ] Convention [ ( IV ) ] as a binding treaty may be swept away by operation of the ‘ general participation clause’ , or otherwise , the [ Hague ] Convention [ ( IV ) ] remains as good evidence of the customary law of nations , to be considered by the ORG along with all other available evidence in determining the customary law to be applied in any given situation . ... ”

NORP In DATE ORG adopted the CARDINAL “ GPE Principles ” summarising the “ principles of international law recognised ” in the LAW and judgment of the ORG GPE :

“ Principle I : Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment .

Principle II : The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law .

Principle IV : The fact that a person acted pursuant to order of his government or of a superior does not relieve him from responsibility under international law , provided a moral choice was in fact possible to him .

Principle V : Any person charged with a crime under international law has the right to a fair trial on the facts and law .

Principle VI : The crimes hereinafter set out are punishable as crimes under international law :

( b ) War crimes : Violations of the laws or customs of war include , but are not limited to , murder , ill - treatment or deportation to slave - labour or for any other purpose of civilian population of or in occupied territory , murder or ill - treatment of prisoners of war , of 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 .

Principle VII : Complicity in the commission of a crime against peace , a war crime , or a crime against humanity as set forth in ORG is a crime under international law . ”

The Control Council Law No . CARDINAL was issued in DATE by ORG in control of GPE to establish a uniform legal basis for the prosecution in GPE of war criminals ( other than those on trial at the IMT Nuremberg ) . Article I made the Moscow Declaration DATE and the London Agreement CARDINAL integral parts of the Law . Article II ( CARDINAL ) provided :

“ In any trial or prosecution for a crime herein referred to , the accused shall not be entitled to the benefits of any statute of limitation in relation to the period DATE to DATE ... ”

This PERSON also recognised acts , almost identical to LAW b ) of the LAW of the IMT Nuremberg , as constituting war crimes and provided that any person committed a war crime whether he was a principal , an accessory , if he ordered or abetted or took a consenting part in the crime or was connected with plans or enterprises concerning the commission of the crime , or was a member of any organisation or group connected with its commission . Punishments were also specified .

In the Hostages ( Wilhelm List ) case , the accused were charged with war crimes and crimes against humanity committed during the Second World War relating mainly to the institution of a scheme of reprisal killings in occupied territory and to the summary execution of NORP troops after they surrendered . The judgment noted that the crimes in the LAW of the IMT GPE and in the Control Council Law No . CARDINAL were declaratory of the existing laws and customs of war .

The judgment noted as follows with regard to List :

“ He was authorised to pacify the country with military force ; he was entitled to punish those who attacked his troops or sabotaged his transportation and communication lines as francs - tireurs ; ... This means , of course , that captured members of these unlawful groups were not entitled to be treated as prisoners of war . No crime can be properly charged against the defendants for the killing of such captured members of the resistance forces , they being francs - tireurs . ”

As regards military necessity , the judgment noted as follows :

“ Military necessity permits a belligerent , subject to the laws of war , to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time , life and money . In general , it sanctions measures by an occupant necessary to protect the safety of his forces and to facilitate the success of his operations . It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war ; it allows the capturing of armed enemies and others of peculiar danger , but it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill . The destruction of property to be lawful must be imperatively demanded by the necessities of war . Destruction as an end in itself is a violation of international law . There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces . ”

While the ORG had to admit that the absence of a formal declaration of war between GPE and GPE created grave doubts as to whether the executed NORP officers would have been entitled to “ prisoner of war ” status , it looked beyond this fact to find that their summary execution was “ unlawful and wholly unjustified ” .

After the Second World War , various national tribunals pursued war crimes prosecutions for acts committed during the Second World War . These included prosecutions before NORP , NORP , NORP , NORP , NORP and NORP military and civilian courts . All concerned breaches of the laws and customs of war and many concerned the necessity of fair trials prior to the punishment of those suspected of war crimes . Certain judgments stressed the legitimate referral of a domestic tribunal to the international laws and customs of war and referred to rules concerning the unnecessary destruction of civilian property , the unlawful wearing of an enemy uniform and individual command responsibility .

In DATE ORG adopted this LAW in response to fears expressed that alleged war criminals ( from the Second World War ) not yet apprehended might escape prosecution with the passage of time .

The DATE Convention came into force on DATE . It was ratified by GPE in DATE and by GPE on DATE . Its relevant part reads as follows :

“ Preamble

Noting that none of the solemn declarations , instruments or conventions relating to the prosecution and punishment of war crimes and crimes against humanity made provision for a period of limitation ,

Considering that war crimes and crimes against humanity are among the gravest crimes in international law ,

Convinced that the effective punishment of war crimes and crimes against humanity is an important element in the prevention of such crimes , the protection of human rights and fundamental freedoms , the encouragement of confidence , the furtherance of cooperation among peoples and the promotion of international peace and security ,

Noting that the application to war crimes and crimes against humanity of the rules of municipal law relating to the period of limitation for ordinary crimes is a matter of serious concern to world public opinion , since it prevents the prosecution and punishment of persons responsible for those crimes ,

Recognising that it is necessary and timely to affirm in international law , through this LAW , the principle that there is no period of limitation for war crimes and crimes against humanity , and to secure its universal application , ... ”

DATE Convention provides :

“ No statutory limitation shall apply to the following crimes , irrespective of the date of their commission :

( a ) War crimes as they are defined in GPE , GPE , of CARDINAL DATE and confirmed by Resolutions CARDINAL ( I ) of CARDINAL DATE and CARDINAL ( I ) of DATE of ORG of ORG , particularly the ‘ grave breaches’ enumerated in LAW of CARDINAL DATE for the protection of war victims ; ... ”

This Convention applies to crimes committed prior to its adoption only if the relevant crimes have not already been prescribed . Only two GPE signed LAW at its depository stage ( GPE and GPE ) and it came into force in DATE upon its third ratification ( by GPE ) . Neither the GPE nor GPE has ratified LAW .

This LAW to LAW was intended to develop and reaffirm many of the laws and customs of war in the light of the age of many of the laws on which they were based ( notably , the CARDINAL Hague Convention ( IV ) ) . Many of its provisions are restatements of existing laws and customs of war , while others are provisions constitutive in nature .

The first CARDINAL “ Basic rules ” of warfare are described in LAW :

“ CARDINAL . In any armed conflict , the right of the Parties to the conflict to choose methods or means of warfare is not unlimited .

It is prohibited to employ weapons , projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering .

DATE , headed “ Emblems of nationality ” , provides as follows :

“ CARDINAL . It is prohibited to make use in an armed conflict of the flags or military emblems , insignia or uniforms of neutral or other GPE not Parties to the conflict .

It is prohibited to make use of the flags or military emblems , insignia or uniforms of adverse Parties while engaging in attacks or in order to shield , favour , protect or impede military operations .

Article CARDINAL confirms the protection of those combatants who were hors de combat :

“ CARDINAL . A person who is recognised or who , in the circumstances , should be recognised to be ‘ hors de combat’ shall not be made the object of attack .

A person is ‘ hors de combat’ if :

( a ) he is in the power of an adverse ORG ;

( b ) he clearly expresses an intention to surrender ; or

( c ) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness , and therefore is incapable of defending himself ;

provided that in any of these cases he abstains from any hostile act and does not attempt to escape .

Article CARDINAL recognises the principle of distinction :

“ In order to ensure respect for and protection of the civilian population and civilian objects , the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives . ”

Article CARDINAL recognises civilians as being defined by non - membership of the armed forces .

“ CARDINAL . A civilian is any person who does not belong to CARDINAL of the categories of persons referred to in DATE ( A ) § § CARDINAL , CARDINAL , DATE and CARDINAL of the Third [ LAW and in LAW . In case of doubt whether a person is a civilian , that person shall be considered to be a civilian .

NORP The civilian population comprises all persons who are civilians .

The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character . ”

Article CARDINAL concerned the protection to be accorded to civilians :

“ CARDINAL . The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations . To give effect to this protection , the following rules , which are additional to other applicable rules of international law , shall be observed in all circumstances .

NORP The civilian population as such , as well as individual civilians , shall not be the object of attack . Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited .

Civilians shall enjoy the protection afforded by this section , unless and for such time as they take a direct part in hostilities . ”

Article CARDINAL reiterated the customary norm that a civilian object ( with no military objectives ) should not be the subject of attack . Article CARDINAL § CARDINAL notes :

“ In case of doubt whether an object which is normally dedicated to civilian purposes , such as a place of worship , a house or other dwelling or a school , is being used to make an effective contribution to military action , it shall be presumed not to be so used . ”

Article CARDINAL offers protection to persons in the power of a belligerent party who do not qualify for superior protections ( such as “ prisoner of war ” status ) under the laws and customs of war .