War crimes cannot be deterred by the threat of prosecution against individual perpetrators. War criminals and people who commit crimes against humanity frequently find refuge in countries where legal, political or social conditions offer them safety. In the four decades since the end of the Second World War, preliminary or criminal proceedings have been initiated against thousands of persons believed to have taken part in Nazi crimes, but in the majority of cases the proceedings did not end with convictions either because the suspects were not extradited back to Europe, or there was insufficient evidence against them.
The measures of punishment that may be used against war criminals were set forth in the statutes of the International Military Tribunals (1945-1946 and 1946-1948) as well as in the law of the Control Council of Germany (1945). The Convention on the Non-applicability of Statutory Limitations to War Crimes has been in force since 1970. Despite these instruments, crimes of declared and undeclared wars are known since 1954 but have mainly been unpunished. The trials and sentences of 24 Nazi defendants in Nuremberg in 1945-1946 were provided on ex post facto grounds, no firm legal precedent having been established, and are not universally regarded by international jurists as having certain legal effect. This is not to say that they cannot be invoked, and other instruments have been proposed - such as the International Law Commission's Code of War Offences, prepared in 1954.
War criminals are known to reside in the UK and Canada where local courts do not have the jurisdiction to prosecute war criminals from World War II. They reside in countries in Latin America where frequently they are effectively immune from detection or have political influence.
At the end of W.W.II, the US actively sought out the scientists of Nazi Germany, and from Japan (unit 731, the Ishii unit). Certain generals decided that it was much more important to have the information that these scientists derived from the torturous experiments that each committed against the subjected, conquered populations of the regions they'd occupied, and on some of the prisoners of war, than to try them for war crimes. The US brought hundreds of these scientists to the US, or hid them under the auspices of the allied occupation forces, and allowed them to remain free. Some went on to positions of extreme power and wealth in exchange for the results of their insidious research programs.
International treaties to prevent war crimes are unenforceable unless individuals can be prosecuted. If treaties are not effective in this sense, nations may indulge in indiscriminate reprisals during and after conflict. Personal responsibility for war crimes is therefore a doctrine in which every field combatant, in every service and in every grade and rank, should be instructed; and such responsibility extends further, through headquarters and chains of command. A government which does not prosecute its own perpetrators of crime during war may itself be criminal. The My Lai massacre in Korea led to the 1969 prosecution of an American officer by his superiors, and there may have been less publicized prosecutions elsewhere since the Second World War. Inadequate punishment, however, may leave superior officers liable in the eyes of the enemy, as well as in the view of world justice; and the invocation of the Nuremberg precedent remains possible in such cases.
War crimes are among the grossest of human rights violations. However in any dispute the response to them changes in the final stages of the conflict. Priorities change and moral absolutes lose their sharp edge. Rights violations that earlier seemed totally unacceptable and deserving of the most rigorous condemnation start to be candidates for reassessment at the bargaining table. But such crimes cannot be left unexamined without mocking justice in places where they were committed and without inviting repetition of such violations in other locations.
Regardless of whether defendants can be compelled to stand trial, indictment alone is a sanction against the accused. An indictment and the resulting arrest warrant turns the individual into a political pariah, subject to immediate detention on leaving his or her country of origin.
Trials of enemy officers are a mask for summary execution. Their very possibility aggravates cruelty in the conduct of wars as no concept of decency and honour on the battlefield is left.