Certain conduct in war is illegal under customary international law, international humanitarian law, and international criminal law. As this blog explains, the international legal framework imposes obligations on states, and establishes the basis for individual criminal liability for war crimes.
States have long had obligations under customary international law to observe principles of laws in war when engaged in armed conflict. Since the second half of the nineteenth century, the customary laws in war have been substantially codified and expanded, notably under the Hague Conventions of 1899 and 1907, and the four Geneva Conventions of 1949 (replacing earlier versions of (1864, 1906 and 1929). The Hague and Geneva Conventions are multilateral treaties between nation states. This body of law is collectively referred to as “International Humanitarian Law” (IHL).
All states are bound to observe the principles of IHL including the four Geneva Conventions.
“Common article 2” of all four Geneva Conventions provides that the minimum rules of war, protections, and prohibitions apply in all international armed conflicts, and by “common article 3” to “conflicts not of an international character”.
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I)
GC I provides for the protection of the wounded and sick, medical personnel, and neutral humanitarian organisations, including the national societies of the International Committee of the Red Cross (ICRC).
Under GC I, wounded and sick members of armed forces in conflicts should be respected, protected, cared for, and treated humanely by all sides in a conflict. The wounded and sick should not be wilfully abandoned without medical assistance, and must not be subjected to violence, murder, extermination, or torture.
States engaged in armed conflict must protect medical units, hospital ships, and hospital zones, medical buildings and stores, and medical flights and transports.
The Convention retains and recognises the ICRC emblem (red cross, red crescent, and red lion and sun) as the distinctive sign of medical services, for display on medical services, and certain authorised and protected medical personnel.
The Geneva Conventions require states to criminalise, prosecute and punish individual grave breaches of GC I.
Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II).
GC II replaced provisions in the Hague Conventions which concerned humanitarian protection of the wounded and sick in the context of naval warfare.
GC II protects wounded, sick, and shipwrecked armed forces personnel at sea. The protections extend to members of armed forces, and, in some situations, militias or volunteer corps of a party to a conflict, as well as members of resistance movements. It can also extend to authorised civilian members of military crews, war correspondents, and supply contractors who are with regular armed forces.
GC II also protects hospital ships and their personnel, rescue vessels, and maritime and air medical transports, with recognised marking of hospital ships and coastal rescue vessels with the ICRC emblem.
Parties to a conflict can appeal to neutral vessels at sea to receive on board and care for wounded, sick or shipwrecked persons, and, further, can demand handover of the wounded and sick to their own warships, subject to the individual’s condition and availability of medical care on board.
The humanitarian role of ICRC and other impartial humanitarian organisations is recognised.
States have obligations to criminalise, prosecute and punish individual grave breaches of GC II.
Convention (III) relative to the Treatment of Prisoners of War (GC III).
GC III requires prisoners of war to be treated humanely, respectfully and equally by detaining powers. It contains extensive and detailed requirements for the treatment of prisoners of war. Detaining powers have obligations to ensure prisoners of war are protected from violence or intimidation. GC III prohibits certain conduct towards prisoners of war-for example, detained prisoners of war can be questioned but are only bound to give their surname, first names and rank, date of birth, and regimental serial number, or equivalent information. Torture is prohibited. Detaining powers should provide sufficient and adequate quarters, food, clothing, and medical attention. GC III also sets out standards concerning the conditions of confinement, and safeguards with regard to penal and disciplinary sanctions. Part IV deals with termination of captivity, releases, and repatriations.
The humanitarian activities of the ICRC and other impartial humanitarian organisations in protecting and providing relief for prisoners of war is recognised.
States have obligations to criminalise, prosecute and punish individual grave breaches of GC III.
Convention (IV) relative to the Protection of Civilian Persons in Time of War (GC IV).
GC IV protects all civilians who find themselves in the hands of a party to a conflict or under an occupying power of which they are not nationals.
Civilians should not be attacked. A wide range of ill treatment of civilians is prohibited, such as torture, collective penalties, intimidation, terrorism, pillage, and reprisals.
Occupying powers’ ability to evacuate civilians is closely controlled. Forcible transfers and deportations from occupied territories is banned. GC IV imposes a wide range of obligations on occupying powers to maintain certain state infrastructure and services.
GC IV recognises the humanitarian activities that the ICRC and other impartial humanitarian organisations may undertake for the protection and relief of civilians.
States have obligations to criminalise, prosecute and punish grave breaches of GC IV.
As for individual criminal liability, over the centuries, isolated examples have been documented of prosecutions of individuals for atrocities deemed beyond the moral and legal limits of war and occupation. Those prosecutions were a matter for the laws of the prosecuting state. Only since the twentieth century has international law evolved to recognise the universal principle of individual criminal responsibility for war crimes, requiring states to criminalise and act to prevent and prosecute war crimes.
First, the Treaty of Versailles, following the first world war, acknowledged that individuals could be put on trial by military tribunals for “violations of the laws and customs of war”. The Treaty included provision to convene a special tribunal to try Kaiser Wilhelm II for “a supreme offence” against international morality and law. In the event, this never happened, but nevertheless, it marked an important benchmark in the development of individual criminal liability for international war crimes.
Prior to the adoption of the 1949 Geneva Conventions, The International Military Tribunal at Nuremberg (IMT) established the clear principle that individuals can be prosecuted for war crimes. The IMT Charter of 1945 brought within the scope of the Nuremberg trials of Nazi officials accused of war crimes and other Shoah and holocaust atrocities:
“War crimes: namely, violations of the laws or customs of war. Such violations shall include but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity”
(article 6 (b) IMT Charter 1945).
Broadly similar provisions were included in the International Military Tribunal for the Far East Charter (IMTFE Charter, or Tokyo Charter).
Whilst the IMT’s jurisdiction was limited to prosecution of “the major war criminals of the European Axis” in relation to the Nazi atrocities of the Second World War, the IMT at Nuremberg, and the IMTFE, provided an essential and irreversible impetus for universal recognition of individual criminal culpability for war crimes.
In 1947 the UN General Assembly Resolution 177 tasked the International Law Commission with formulating principles of international law following the IMT Charter, leading to the adoption in 1950 of the International Law Commission’s “Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal” (the Nuremberg Principles).
The Nuremberg Principles recognised under Principle 1 that
“any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment”
Principle VI set out that the crimes for which individuals could be held responsible under international law: crimes against peace, war crimes, and crimes against humanity. The definition of war crimes in article 6(b) of the IMT Charter was adopted word-for-word.
During the same period, the work of the International Committee of the Red Cross (ICRC) led to the adoption of the Geneva Conventions in 1949. Under the Geneva Conventions states are required in international law to put into their domestic laws “effective penal sanctions” for grave breaches of the Conventions, and to bring suspects before national criminal courts regardless of nationality.
The universal implementation and compliance with this aspect of IHL has been subject to a great deal of variance, and slow progress, until the latter years of the twentieth century, which saw establishment of special tribunals in respect of atrocities committed in former Yugoslavia (ICTY), Rwanda (ICTR), and Cambodia (Extraordinary Chambers in the Courts of Cambodia, or ECCC), amongst others, and establishment of the International Criminal Court (ICC). The work of the ICC, special tribunals and extraordinary chambers has provided in a relatively short period a substantial body of authoritative jurisprudence on the interpretation and application of war crimes laws.
The ICC was established by adoption in 1998 of the Rome Statute of the International Criminal Court, which entered into force in 2002. For the first time, there is now a permanent international tribunal, with specialist jurisdiction over the core international crimes.
The Rome Statute empowers the ICC to prosecute individuals accused of war crimes falling within its jurisdiction, that is, committed within the territory of or by nationals of state parties; when non-member states that have submitted to the ICC’s jurisdiction in respect of a particular incident; and in narrow circumstances, on a resolution and referral by the UN Security Council on alleged crimes committed in/by nationals of non-member states.
There are two core elements to war crimes under the ICC’s Rome Statute:
(i) the alleged acts must have been committed within the context of an international or non-international armed conflict (the “chapeau” or contextual element) and is consistent with Geneva Conventions common articles 2 and 3; and
(ii) the crime was committed with knowledge and intent (the mens rea, or mental element of the crime).
Article 8 of the Rome Statute sets out a fulsome definition and scope of war crimes within the ICC’s jurisdiction.
Where a national court has jurisdiction and is willing to investigate and prosecute, the ICC will defer to national courts. Whilst the ICC’s jurisdiction is circumscribed, and national prosecutions will apply national laws, the Rome Statute’s definition of ‘war crimes’, and the evolving jurisprudence of the ICC, provide a fundamental reference point for national courts on the universality, meaning, and scope of war crimes.
Article 8, Rome Statute of the International Criminal Court
1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
2. For the purpose of this Statute, ‘war crimes’ means:
a. Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
i. Wilful killing
ii. Torture or inhuman treatment, including biological experiments;
iii. Wilfully causing great suffering, or serious injury to body or health;
iv. Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
v. Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
vi. Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
vii. Unlawful deportation or transfer or unlawful confinement;
viii. Taking of hostages.
b. Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
i. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
ii. Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
iii. Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;
iv. Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
v. Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
vi. Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;
vii. Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;
viii. The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;
ix. Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
x. Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;
xi. Killing or wounding treacherously individuals belonging to the hostile nation or army;
xii. Declaring that no quarter will be given;
xiii. Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war;
xiv. Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;
xv. Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war;
xvi. Pillaging a town or place, even when taken by assault;
xvii. Employing poison or poisoned weapons;
xviii. Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;
xix. Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;
xx. Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;
xxi. Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
xxii. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;
xxiii. Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
xxiv. Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
xxv. Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;
xxvi. Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
c. In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
i. Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
ii. Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
iii. Taking of hostages;
iv. The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.
d. Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.
e. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:
i. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
ii. Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
iii. Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;
iv. Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
v. Pillaging a town or place, even when taken by assault;
vi. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;
vii. Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;
viii. Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;
ix. Killing or wounding treacherously a combatant adversary;
x. Declaring that no quarter will be given;
xi. Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;
xii. Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict;
f. Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.”
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