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Prior to the formulation of the Hague Convention of 1899, there was no internationally accepted concept of “war crimes”. Instead, individual nations established military codes of conduct under which their soldiers, or even those of country’s opposing them in a war, could be punished for violations of this code. Thus, trials, as such, for war crimes in the pre-World War I era, were conducted strictly on this basis.
One of the first recorded instances of a war crimes trial occurred in 405 BC during the long running war taking place between Athens and Sparta. Lysander, the Spartan commander, took a large number of Athenian prisoners. Due to the many allegations of atrocities against the Athenians, Lysander decided to form a tribunal of his allies to determine what, if any punishment, should be meted out to the prisoners.
The next documented cases took place during the Middle Ages. In 1268 at Naples, Conradin von Hohenstafen, successor to the throne of the Holy Roman Empire, was charged, convicted, and sentenced to death for “initiating an unjust war” against the French “king” of Sicily, Charles of Anjou. The Scottish nationalist, Sir William Wallace, was charged in 1305 with “excesses in war” under the “Statute of Westminster”, which authorized the Crown to punish soldiers who acted contrary to the laws and customs of the land. In what some legal scholars have labeled the “first international war crimes trial”, Peter von Hagenbach, a knight in the service of Duke Charles of Burgundy, was charged with the commission of atrocities against the townspeople of Breisach, Austria in 1474. The “international” designation is somewhat questionable due to the fact that the tribunal which sat in judgment of von Hagenbach was made up of twenty-eight individuals drawn from the states that comprised the Holy Roman Empire. However, it is notable for being the first recorded instance where a soldier (von Hagenbach) asserted as his defense that he was simply following the orders of his superior, the Duke of Burgundy. Von Hagenbach was convicted of murder, rape, perjury, and other crimes against the “laws of God and man” and put to death.
In the 19th Century, as military codes of conduct were expanded worldwide, more soldiers began to be charged with crimes committed during a time of war or during military engagements. A U.S. military tribunal tried, convicted, and executed two Englishmen in 1818 for violations of “laws and usages of war” for their role in inciting attacks by Creek Indians in which U.S. civilians were killed. During the Mexican-American War, General Winfield Scott issued “General Order 20”, which designated as punishable offenses certain acts committed by U.S. troops operating in Mexico. While originally intended to cover U. S. troops only, General Scott’s order eventually included violations committed by both Mexican citizens and soldiers against American military personnel. The “Lieber Code” of 1863 listed the laws governing the conduct of war by Federal soldiers in the Civil War and authorized the punishment of violations of these laws regardless of whether they were committed by Federal or Confederate troops. It was under the Lieber Code that Captain Henry Wirz, a Swiss citizen, was tried and executed in 1865 for his role in the mistreatment of Federal prisoners at Andersonville. Lastly, a private commission led by Charles Francis Adams investigated allegations of atrocities committed by American troops in the Philippines during the insurrection of 1899-1902. The findings of the commission resulted in charges being brought against a number of American soldiers and officers by U.S. military courts. By and large, the punishment received by these men was light to non-existent.
With the adoption of the Hague Conventions of 1899 and 1907 by the major world powers, what constitued a war crime was finally codified into international law. From that point forward, soldiers of any nation could potentially be charged and tried for these violations, whether it be by their own country or the courts of the country in which the crimes took place.
Interesting!!! 'Old Fuss & Feathers' issued General Order 20 during the Mexican War to address 'war crimes'. So when GEN Scott ordered the execution of 36 captured members of THE PATRICOS (St. Patrick's BN) who were scorged, then hanged---America was in violation of its own regulations (like Mai Lai 1968 and Heidetha 2010)? I know BG 'Howling Wilderness' Smith was tried (& acquited) for the Massacres the US Army committed on the Island of Simar. Another incident during the Philipine-America War was the Battle of the Cretor (1909) where US Troops slaughtered 900+ Philipino troops via indirect fire. Another interesting case is the Bascari Massacres (1943) which was the first used of the 'Eikmann Defence' during WWII (SGT Ward machine gunned 40 Italian-German Prisoners under a tree while CPT Compton orderly shot 33 Germans & Italians in groups of five). Both Men qouted Patton as authorizing said murders (remember the speech George C. Scott gave in the beginning of Patton? THat One!!! Patton told Brad to order SGT Ward to say they were excaping but Bradley refused. Ward got life, suspended after WWII. CPT Compton was 'acquitted' and then 'used until depleted' (forced to attack a Nazi strong point without adequate support until his body was recovered...)
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