The label "victor's justice" is a situation in which an entity participates in carrying out "justice" on its own basis of applying different rules to judge what is right or wrong for their own forces and for those of the (former) enemy. Opponents generally charge that the difference in rules amounts to hypocrisy and leads to injustice. Targets of the label may consider it derogatory. The term was coined (as Victors' justice) by Richard Minear in his 1971 account of the International Military Tribunal for the Far East.
Closely related is vae victis behaviour, where victor unilaterally changes the agreed treaties or their interpretations and is seen as a form of victor's justice.
History of the laws of war
Legal constraints on the conduct of war in ancient Rome appear in Cicero: "As for war, humane laws touching it are drawn up in the fetial code of the Roman People." Specifically, "no war is just, unless it is entered upon after an official demand for satisfaction has been submitted or warning has been given and a formal declaration made." Breaches of this duty by Roman citizens were adjudicated at trial.
But to enemies of war, Roman law attributed neither duties nor rights; hence judgment – and punishment – of defeated foes was at Roman discretion. Still, the exercise of that discretion must serve justice, Cicero argued: "...when the victory is won, we should spare those who have not been blood-thirsty and barbarous in their warfare" (warmaking being excused only when "we may live in peace unharmed" in no other way).
The Western tradition of thinking on just war continues into Christendom and then Modernity, and from the late 19th century becomes codified in international conventions, most notably those of Geneva and the Hague, then said to express laws of war.
A stark and detailed example of victor's justice is presented by James Madison Page in his 1908 book The True Story of Andersonville Prison, subtitled "A Defense of Major Henry Wirz". After describing his months as a prisoner of war of the Confederacy, the author recounts the imprisonment and trial of Major Henry Wirz, CSA, commandant of the prison camp operated at Andersonville, Ga. during the American Civil War. Many of the phenomena and issues later observed in the war-crimes trials following the Second World War may be seen in this account of Wirz's trial, conviction, sentencing, and execution.
The Nuremberg Criminal Court for war crimes (and subsidiary courts like the Dachau International Military Tribunal) prosecuted only Axis nationals or collaborators, and did not prosecute Allied war crimes. This led to the paradox that no one from the Soviet Union was charged although Germany and the USSR had started World War II in a coordinated effort. So while German defendants were charged with waging war of aggression for Germany's attack on Poland, no one from the Soviet Union was charged even though the USSR had attacked Poland as well.
Additionally, it is usual that the armed forces of a civilized country will issue their forces with detailed guidance on what is and is not permitted under their military code.
These are drafted to include any international treaty obligations and the customary laws of war. For example, at the trial of Otto Skorzeny, his defense was in part based on the Field Manual published by the War Department of the United States Army, on 1 October 1940, and the American Soldiers' Handbook. If a member of the armed forces breaks their own military code, they can expect to face a court martial. When members of the Allied armed forces broke their military codes, they could be tried, as for example the Dachau massacre or the Biscari Massacre trials. The unconditional surrender of the Axis powers was unusual and led directly to the formation of the international tribunals. Usually international wars end conditionally and the treatment of suspected war criminals makes up part of the peace treaty. In most cases those who are not prisoners of war are tried under their own judicial system if they are suspected of committing war crimes – as happened at the end of WWII in Finland, where Allied Control Commission provided a list of occurrences of war crimes and crimes against peace and the investigation and judgment of these cases were left to Finnish courts according to Finnish law. However, an ex post facto law had to be instated for those cases, as the Finnish Criminal Act didn't contain a concept of being responsible for politics resulting in a war. In restricting the international tribunal to trying suspected Axis war crimes, the Allies were acting within normal international law.
Attempts to ensure the fairness of war crimes prosecutions
Since World War II, the accusation of victor's justice has arisen in every subsequent conflict where war crimes prosecutions have been made. Examples of include the wars in the former Yugoslavia, in Rwanda and Afghanistan.
The International Criminal Court (ICC) was set up in 2003 as a treaty arrangement between member states in an attempt to provide a neutral international court that avoids the accusation of "victor's justice", and that would prosecute all alleged war crimes, on either side of any conflict.
- The International Criminal Tribunal for the former Yugoslavia (ICTY), organized by the United Nations claims jurisdiction over all acts of genocide, crimes against humanity and war crimes within the territory of former Yugoslavia. However, so far the Tribunal has prosecuted only citizens from the Balkan states. Most defendants have been Serb politicians, soldiers and paramilitaries but Croats, Bosnians and ethnic Albanian Kosovo Liberation Army guerrillas have also been tried. However, the Tribunal has declined to investigate allegations made by Western academics and Serb politicians, who accused NATO officials of war crimes during the 1999 bombing of Serbia (the Kosovo War), including the deliberate bombing of a Serb TV station killing journalists, and the lethal bombing (possibly reckless) of a railway bridge whilst a civilian train was passing over it.
Two further recent conflicts in which the U.S. have been involved have led to allegations of victor's justice:
- After the war in Afghanistan, the U.S. administration set up detention camps such as Camp X-Ray where they asserted that the detainees held there are illegal enemy combatants in an ongoing war, and as such can be denied protection under the Geneva Conventions. It is by no means clear that this is the correct legal interpretation of the detainees' legal rights under United States and international law. Although judicial review of this position is currently under way in the United States, it is in no way certain that a final legal ruling will be made since the Bush administration has argued that habeas corpus no longer applies to these detainees.
- Concerns have been raised that the post-2003 administration in Iraq may not have the legal skills or inclination to try war crimes and crimes against humanity allegedly committed by the former Iraqi Ba'ath regime fairly and that this represents a desire for victor's justice through show trials. Commentators on international humanitarian law have argued that it has to be done this way because the ICC cannot prosecute crimes committed prior to its creation and the U.S. administration claims that there is not the international will to set up another ad hoc ICTFY style court. However, ex-Baath party members could have been tried by a U.S. or British court martial or Nuremberg-style tribunal — but this might have led to even more accusations of victor's justice, even if it had led to more orderly or fairer trials.
- Combatant Status Review Tribunal
- Disarmed Enemy Forces
- Might makes right
- Tomoyuki Yamashita
- Treaty of Versailles
- United States war crimes
- Richard Minear, Victors’ justice: the Tokyo war crimes trial (Princeton NJ: Princeton University Press, 1971).
- Cicero, On Duties
- Page, James Madison. The True Story of Andersonville Prison. Digital Scanning, Inc., Scituate, Mass., 1999.
- "Judgement: The Law Relating to War Crimes and Crimes Against Humanity" contained in the Avalon Project archive at Yale Law School. "but by 1939 these rules laid down in the [Hague] Convention [of 1907] were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war..."
- Trial of Otto Skorzeny and Others, General Military Government Court of the U.S. Zone of Germany, 18 August to 9 September 1947
- "News Archive from Monday, July 9, 2012 - Why Did the U.S. Say No to the International Criminal Court? - - News - Alumnae/i Hub - Vassar College". vassar.edu.
- "Victor's Justice or Law?".