War crimes are serious violations of international humanitarian law during an armed conflict. Armed conflicts may be either international or internal (noninternational). International armed conflicts are between two or more states, whereas internal armed conflicts occur within one state (e.g., a civil war). International humanitarian law, which is also referred to as the law of war, developed over many centuries through customary international law (i.e., law established from customs) rather than conventional international law (i.e., law established by international treaties ratified by states).
Historically, international humanitarian law is based on three principles that govern the conduct of military personnel during armed conflicts. The first principle is necessity, which states that what is necessary to achieve a military objective may be done. The second principle is humanity, which states that acts that cause unnecessary harm and suffering are unlawful. Whereas the principle of necessity states what may be done to achieve a military objective, the principle of humanity states what may not be done unless otherwise done by necessity. For example, it may be necessary to kill the enemy who is firing his weapon at you; however, it is unnecessary and inhumane to kill a prisoner of war or a person who has surrendered and is no longer a threat. The third principle is chivalry, which requires military personnel to fight honorably and respect each other during combat (e.g., respecting military and religious symbols as well as signs of neutrality). For example, if military personnel use the white flag, which means surrender, to draw their enemies closer to attack them, chivalry has been violated. Chivalry is also violated when religious symbols such as the star, crucifix, biblical text, or church are attacked or used to gain a military advantage. A sign of neutrality signifies nonparticipation in the armed conflict, therefore, not favoring one side over the other. The Red Cross is a universal symbol of neutrality, which is not to be attacked or used in favor of or against participants to achieve a military objective.
The first codification of international humanitarian law was the Lieber Code, named after its codifier Francis Lieber, in 1863, which was authorized by the U.S. War Department under President Abraham Lincoln in response to reports of atrocities committed during the American Civil War. The Lieber Code consisted of 157 articles defining how military personnel were to conduct themselves in the field.
Since the Lieber Code, there have been many international conventions that drafted treaties defining unlawful conduct and use of weapons during armed conflict. Most notably are the 1899 and 1907 Hague Conventions, which are referred to as Hague Law, and the four 1949 Geneva Conventions, which confirmed Hague Law, in addition to formulating many other rules and principles based on or expanding upon customary international law.
The 1949 Geneva Conventions were one result of the historic International Military Tribunal and its subsequent trials—the Nuremberg Trials—that prosecuted Nazi war criminals for their unlawful conduct during World War II. At Nuremberg the defendants were charged with war crimes defined as “namely, violations of the laws or customs of war. …” At this time in 1945, there was only Hague Law and customary law to consider in determining if war crimes were committed. After the success of the Nuremberg Trials, the Trials for the Far East were established to prosecute Japanese war criminals for their egregious acts during World War II. Subsequent to the Nuremberg and Tokyo trials, the 1949 Geneva Conventions updated and modified the law of war, which if violated was considered to be a war crime.
The first international criminal tribunal to prosecute war crimes since the 1949 Geneva Conventions was the International Criminal Tribunal for the former Yugoslavia in 1993, which was established by the UN Security Council for the prosecution of genocide, crimes against humanity, and war crimes.
In 1994, the UN Security Council established the International Criminal Tribunal for Rwanda for the prosecution of genocide, crimes against humanity, and war crimes by applying Common Article 3. Article 3 of all four Geneva Conventions of 1949 applies certain offenses to internal armed conflicts. The conflict in Rwanda was internal, and therefore Common Article 3 was necessary to prosecute certain violations of the Geneva Conventions of 1949.
The International Criminal Tribunals for the former Yugoslavia and Rwanda were temporary courts established in response to particular conflicts. The International Criminal Court, established on July 1, 2002, is a permanent court that prosecutes individuals for genocide, crimes against humanity, war crimes, and the crime of aggression.
The two basic elements of war crimes are that the violation is serious and that it occurs during an armed conflict. The latter is to include that the serious violation has a connection to the armed conflict. No war, no war crime. For example, if a murder is committed in a state that is at war with another state, but the murder has no connection to the war itself, then a war crime has not been committed; thus, the result is a murder that is to be prosecuted by the state with jurisdiction of crimes as such. Conversely, if a crime is committed in connection to a war but does not constitute a serious violation (e.g., a military personnel taking a loaf of bread from a village that has much food), then a war crime has not been committed, as the offense is not considered serious.
- Cassese, Antonio. 2003. International Criminal Law. New York: Oxford University Press.
- Cooper, Belinda, ed. 1999. War Crimes: The Legacy of Nuremberg. New York: TV Books.
- Schabas, William A. 2007. An Introduction to the International Criminal Court. 3rded. New York: Cambridge University Press.
- Wise, Edward M., Ellen S. Podgor, and Roger S. Clark. 2004. International Criminal Law: Cases and Materials. 2nd ed. Dayton, OH: LexisNexis.
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