War Crimes

Roman philosopher and statesman Seneca (c. 3 b.c.e.–c.e. 65) said that law fell silent during war, but, this is far from the case. Norms regulating behavior in war were the mark of many ancient civilizations. From ancient times to the medieval laws of chivalry, limitations have been imposed in the name of humanity and commonsense on warfare. In the twenty-first century, the laws of war are voluminous and often effective.

These laws are found in treaties such as the four Geneva Conventions of 1949 and the two Additional Protocols of 1977, in the custom and practice of nations, and in the decisions of various international tribunals such as the International Criminal Tribunal for the Former Yugoslavia (ICTY). Military training, in the West at least, almost always includes sessions on the laws of war and the appropriate conduct of hostilities. Lawyers now play a relatively prominent role in advising combatants during war on matters such as targeting, and the treatment of prisoners of war (POWs), and the Gulf War in 1991 was described as the most legalistic war in history.

definitions

Despite all this, of course, breaches do occur. The most serious of these breaches are characterized as war crimes or, as the Statute for the International Criminal Court (ICC) puts it, "serious violations of the laws of war." The great landmark in this area of the law, dwarfing other developments, is the Nuremberg Trial in post-World War II (1939–1945) Germany. This trial is often referred to as a war crimes trial, but this is not an entirely accurate designation. In popular commentary on war crimes the term is used to describe any offense taking place in war time. The various crimes committed by the Nazis from the invasion of Poland to the creation of the extermination and concentration camps to the shooting of POWs all seen to belong in the generic category "war crimes."

However, war crimes were simply one of three categories prosecuted at Nuremberg. Alongside war crimes were crimes against humanity, a category of criminality designed to encompass gross human rights violations committed against fellow nationals (e.g., the destruction of the German Jews), and crimes against peace or acts of aggression committed in violation of international treaties. Strictly speaking, neither of these categories belongs in the category of war crimes, although there has tended to be some overlap between crimes against humanity (including the crime of genocide) and war crimes. At Nuremberg war crimes were defined in Article 6 as:

Violations of the laws and customs of warfare [including but not limited to] murder, ill-treatment, deportation … of civilian population of or in occupied territories, murder of ill-treatment of prisoners of war … plunder … destruction not warranted by military necessity.

The key distinguishing feature of war crimes, then, was the target or victims of such crimes: either civilians in occupied territories or POWs. In contrast, aggression was a crime aimed at whole states whereas crimes against humanity were discriminatory acts committed against any civilian population.

Not all failures to comply with the laws of war are war crimes. The photographing of prisoners or the absence of sporting facilities for detainees may be breaches of the laws of war but these do not rise to the level of war crimes. War crimes are a special category of violation giving rise to individual responsibility under international law and defined as such in treaties such as the Geneva Convention. The person who commits such acts can be prosecuted before national or international courts, and, if found guilty, jailed for his or her crimes.

The core crimes are uncontroversial. These are found in the Geneva Conventions and Protocols under the heading: Grave Breaches. For example, Article 147 of the Fourth Geneva Convention includes the following acts in the category of war crimes: killing or torture of prisoners and detainees, taking of hostages, unlawful deprivation of liberty, and unnecessary destruction of property. Importantly, states are under an obligation to seek out and prosecute those thought to be responsible for such acts regardless of their nationality.

In 1977, states convened to elaborate on the laws of war in drafting what became the Additional Protocols to the Geneva Convention. The First Additional Protocol (concerned with international armed conflict) further developed the idea of war crimes to prohibit particular methods of warfare. So, for example, since 1977 at least, attacking civilian objects has been a war crime. In addition, employing methods of warfare with indiscriminate and disproportionate effects on civilian populations is characterized by the Protocol as a war crime.

However, these developments did not significantly change the law as it applied to civil wars or noninternational armed conflict. Indeed, it was possible to argue as recently as 1998 that murder during civil wars was not a war crime. This began to change in cases heard at the ICTY. In The Prosecutor v. Tadic, the first case to result in a conviction, Dusko Tadic (b. 1955), a Bosnian Serb, was convicted of serious violations of the laws of war in internal armed conflict. The ICTY held that war crimes were capable of being committed in internal as well as international armed conflict.

Given the number and devastating effects of civil wars, this marked a major breakthrough in the laws of war. This advance was confirmed in the negotiations for the ICC leading to the drafting of a statute for a permanent criminal court (The Rome Statute). The statute gives the court jurisdiction over war crimes (Article 5) and provides a detailed list of those actions constituting war crimes. The list includes many of the breaches found in the Geneva Conventions, but, in a dramatic departure from existing treaty law, it criminalizes also serious violations of the international humanitarian law committed during civil wars. These include the deliberate targeting of civilians, pillage , attacks on United Nations personnel, and attacks on medical facilities. It should be noted, however, that the court investigates only those cases in which there have been large-scale commissions of war crimes. The intention is, as it always has been in this area of law, that small-scale, isolated crimes be prosecuted in national courts or through military court martials.

The law of war crimes, then, is at its most advanced stage. The Rome Statute, coupled with case law from international tribunals, provide a systematic and detailed normative structure for the prosecution of serious violations of the laws of war. Gaps in this law are relatively few and the major defect, the failure to criminalize brutal conduct during civil wars, has been remedied.

war crimes trials

The existence of legal rules is only half the story when it comes to building the rule of law in a particular area. Institutions, too, are required and, in particular, courts capable of enforcing and developing the law. In the area of war crimes, institutional development has been difficult and slow. Although individuals were tried by court martial and national courts, the first international trials were held in Tokyo and Nuremberg at the end of World War II. These trials mark a breakthrough for the prosecution and punishment of violations of international law.

At Nuremberg, after a trial lasting from November 1945 to October 1946, twenty-two high-ranking Nazi officials were tried of whom twelve were hanged, seven given long jail sentences, and three acquitted altogether. The Tokyo Trial (from May 1946 to November 1948) culminated in the death sentence for seven of the twenty-five defendants and prison sentences for the remainder. Curiously, however, the Nuremberg Trials, although they were the inspiration for human rights law, did not lead to the creation of a permanent international criminal court. It was not until the early 1990s that the international community was provoked into creating international tribunals by atrocities in the Balkans and Rwanda. The ICTY and International Criminal Tribunal for Rwanda have both engaged in the prosecution of war crimes, genocide, and crimes against humanity arising out of the wars in these two areas.

protocol additional to the geneva conventions

The Geneva Conventions refer to a series of international agreements that established codes of conduct for the treatment of the sick, wounded, and dead during periods of war. The first convention was adopted in 1864. The agreements also spell out regulations regarding the treatment of prisoners of war.

Members of signatory nations who are accused of violating the Geneva Conventions are brought before the International Court of Justice at The Hague, Netherlands.

The Geneva Conventions were modified in 1977 when two additional protocols, or amendments, were added. Protocol I offers protections to victims in international armed conflicts. Protocol I and Protocol II together offer protection to guerrillas in civil wars or wars of selfdetermination.

One interesting facet of Protocol I was the addition of an article allowing for the creation of international factfinding commissions. As a result of a fact-finding commission, Bosnian Serb Dusko Tadic (b. 1955) was prosecuted in 1996 for his mistreatment of prisoners of war in northern Bosnia. Tadic was convicted on May 7, 1997.

The most celebrated cases have been those of former prime minister of Rwanda, Jean Kambanda (b. 1955), and former president of Serbia, Slobodan Milosevic (b. 1941). These two tribunals, established by security council decree and with limited territorial and temporal jurisdiction, are often referred to as ad hoc tribunals. The dream of a treaty-based permanent international tribunal with potentially global jurisdiction did not come to realization until 1998 in Rome when the states of the world convened to create the ICC.

The ICC prosecutes the gravest international crimes in cases in which domestic courts have proved unwilling or unable do so. It remains to be seen whether there will be the political will to make the ICC a success. (The United States is in 2005 a strong critic and opponent of the court.)

It would be inaccurate to focus entirely on judicial institutions. Courts become involved only after crimes are alleged to have taken place. In some ways, court proceedings are a symptom of failure. Courts are efforts to punish rather than devices to prevent. The institutions that count most in preventing the commission of war crimes are probably the military and the state itself. When the state takes its international humanitarian law obligations seriously and transmits that commitment to a receptive and responsible military, war crimes occur infrequently. War crimes tend to occur most often where there are poorly organized armies, so there is a natural and causal relationship between military discipline and the capacity to prevent large-scale abuses of the laws of war (a pathological state such as Nazi Germany is an obvious exception to this).

prosecutor v. tadic

In 1997 an international war crimes tribunal found Bosnian Serb Dusan "Dusko" Tadic (b. 1955) guilty of eleven counts of war crimes against humanity. Tadic, a police reservist, was accused of channeling thousands of Muslims, Croats, and other civilians into Serb prison camps, and later torturing and murdering them in a wave of ethnic cleansing. He received a twenty-year prison sentence.

The trial was the first proceeding held by an international criminal court since World War II (1939–1945). In addition, before the Tadic case, no one had ever been convicted of violating the international laws of war for acts committed during an internal conflict. The verdict was also important because it showed that the tribunal process was a fair and feasible way to deal with war-crimes suspects.

Even though Tadic was acquitted on the more serious counts of murder and rape, international observers were pleased with the conviction. They believed it sent a message to the world that individuals involved in any conflict can—and will—be held responsible for their role in any war crimes, crimes against humanity, or other violations of international human rights law.

The future of war crimes law seemed fairly secure in 1998 when the ICC was finally established. Since then, however, there have been some worrying developments. In particular, there is a growing tendency to distinguish those entitled to protection under the laws of war from those categories of personnel who fall outside the scope of these laws. There is little doubt that the new wars—brutal and unconventional—pose a serious threat to the integrity and efficacy of the law of war crimes.

See also: Crimes Against Humanity; Genocide; Human Rights; International Humanitarian Law.

bibliography

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Gerry Simpson