19 - On the Road to Total Retribution? The International Debate on the Punishment of War Crimes, 1872-194

Summary

How can one prevent brutal manifestations of righteous anger among an overexcited population when a whole nation mobilizes in defense of homes? How can one ensure that the sentiments of law or humanity prevail?

These words were written in 1870 by Gustave Moynier, the first president of the Comité international de secours aux militaires blessés in a treatise on the recently negotiated Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. At that time Moynier was convinced “that generally speaking the Convention will be observed in the future and that precautions taken to obtain this result will not prove to have been in vain.” The Franco-Prussian War, which broke out shortly thereafter, left him anxious, however, about the power of “a purely moral sanction to ease unleashed passions.” In January 1872, he accordingly launched a campaign to establish an international tribunal to adjudicate violations of the Convention.

Moynier thus became the first to propose that the problem of war crimes be regulated at the international level. He was not, however, the first who sought to develop positive legal guidelines to prosecute violations of the laws of war. The eminent American jurist, Francis Lieber, had, at the behest of Abraham Lincoln, proposed during the American Civil War to punish “crimes punishable by all penal codes such as arson, murder, maiming, assaults . . . and rape, if committed by an American soldier in a hostile country against its inhabitants.” Unlike Moynier, who proposed an international tribunal, Lieber had preferred to work through national legislation and courts because he believed that an international tribunal would be neither desirable nor efficient. Other jurists such as Conrad von Holtzendorff, Gustave Rolin-Jaequemyns, and Achille Morin agreed with Moynier that an international tribunal to judge violations of the Geneva Convention would be a step in the right direction; they wondered, however, whether such an institution would be accepted by the states concerned, and criticized some of the details of Moynier’s proposal.