By Martha Onate Inaingo
Published on: October 24, 2023 at 12:21 IST
War is not a new phenomenon to human existence, there have been several wars in ancient as well as modern times between tribes, race, communities, states and countries. For many centuries war have been seen as a conquest to gain more territories, demonstration of military might and a means of dispute settlement between kingdoms, countries and territories.
These wars were conducted in methods regulated by customary practices so that the damage caused by war was not beyond repair. Certain actions were prohibited in wars or conducts or armed conflict such as wiping out an entire village, tribe etc.
The concept of prohibited behaviours during war began to develop into a more formidable form of law in the beginning of the 20st century, when international humanitarian law also referred to as law of armed conflict was codified. The codified laws dictated how warring parties should conduct themselves during war and the mean and methods that should be used in warfare.
In modern times state practices have evolved to be a major part of International Humanitarian Laws, recognized by legislations of a number of countries and military manuals that prohibit the violation of the laws or customs of war. The major conventions that have been signed and adopted by member States of the United Nation with regards to International Humanitarian Laws are the Hague Conventions of 1899 and 1907 respectively, the Geneva Conventions of 1864 which was subsequently amended to four Geneva Conventions in 1949, and the additional Protocols of 1977.
This Article is aimed at addressing the concept of war crimes, the laws regulating war crimes and their enforceability.
What are War Crimes?
The term war crimes cannot be described with precision due to the evolution of its usage since World War I,[1] however there are legal instruments that have defined war crimes.
The first international instrument that defined war crimes was the Instructions for the Government of Armies of the United States in the Field, also known as the Lieber Code (written by Francis Lieber) issued by the then US President Abraham Lincoln during the American Civil War. The Lieber Code which was given to Union military personnel in 1863, defined war crimes as serious breach of the law of war to force the subjects of the enemy into service for the victorious government, and it prohibited wanton violence committed against persons in the invaded country including, rape, maiming, and murder, all of which carried death penalty.[2]
The modern definition of war crimes which have been codified in international statutes and the war crimes tribunals in Yugoslavia and Rwanda are more expansive and criminalize certain actions or practices committed by military personnel or civilians.[3]
What amounts to war crimes was determined by the International Military Tribunal at Nuremberg, as violations of the Hague Convention because by the time of the Second World War, these treaty rules had crystallized into customary law.
Similarly, Article 8 of the Statute of the International Criminal Court (Vol II, Ch.44,§ 3) defines War Crimes, inter alia, as “serious violations of the laws and customs applicable in international armed conflict” and “serious violations of the laws and customs applicable in an armed conflict not of an international character”. The implication of this provision is that for a practice or conduct to amount to war crimes, a customary rule of international law as well as provisions in the statute have been violated.[4]
Elements of War Crime
Every crime has two elements, the physical element (Actus reus) and the mental element (mens rea).
- The physical element of war crimes constitute the conducts that takes place in the context of an international or non-international armed conflict, that amount to violations of customary international laws or treaty laws.[5] The actions or omissions that are prohibited by international humanitarian laws constitute the physical elements of war crimes.
Example of some of the prohibited acts include: murder; mutilation, cruel treatment and torture; taking of hostages; intentionally directing attacks against the civilian population; intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals; pillaging; rape, sexual slavery, forced pregnancy or any other form of sexual violence; conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.[6]
Omissions that can amount to war crimes include failure to provide a fair trial and failure to provide food or necessary medical care to persons in the power of the adversary.[7]
- The mental element of war crimes constitute the intention and knowledge of the individual that commits the act in breach of a humanitarian law. It is traditional in cases of criminal offences that there must be some kind of inferences to show the mental state of the offender in other to prove the offence. The national of a state whether party to any of the humanitarian laws (customary or treaty law) or not would be held criminally liable and convicted by the International Criminal Tribunal or the International Criminal Court. War
Distinctions Between War Crimes and Crimes Against Humanity
War crimes are those violations of international humanitarian law (treaty or customary law) that incur individual criminal responsibility under international law. Consequently, war crimes are distinct from the crimes of genocide and crimes against humanity, the distinguishing factor being that war crimes must always take place in the context of an armed conflict, either international or non-international.[8]
What constitutes a war crime may differ, depending on whether an armed conflict is international or non-international.[9]
In contrast to genocide and crimes against humanity, war crimes can be committed against a diversity of victims, either combatants or non-combatants, in international or non-international armed conflicts, depending on the type of crime.[10] Articles 18-20 of the Additional Protocol I enlist victims of international armed conflicts to include wounded and sick members of armed forces in the field and at sea, prisoners of war and civilian persons. In the case of non-international armed conflicts, the first and second Geneva Conventions makes provision for the protection of persons who had 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. In both types of conflicts protection is also afforded to medical and religious personnel, humanitarian workers and civil defence staff.
War crimes can also be divided into five categories which are, war crimes against persons requiring particular protection; war crimes against those providing humanitarian assistance and peacekeeping operations; war crimes against property and other rights; prohibited methods of warfare; and prohibited means of warfare.[11]
International Laws on the Subject of War Crimes
The violations that amount to war crimes are not limited to customary international law alone;
All the conducts attributable as war crimes cannot be found in only one treaty; there is no one single document in international law that codifies all war crimes, they can be found in both international humanitarian law and international criminal law treaties, as well as in international customary law.[12]
Majority of the State practices reflect in their military manuals and criminal codes that violations refer to both customary law and applicable treaty law.[13]
The following are the International Humanitarian Laws prohibiting War Crimes:
- The Geneva Convention of 1864
This is the first Geneva Convention of the four subsequent Geneva treaties which defines the basis on which the rules of international law for the protection of the victims of armed conflicts lies.[14] This first Convention was initiated by what is now the International Committee for the Red Cross and Red Crescent (ICRC).[15] The Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, was adopted on August 1864 to establish the red cross emblem signifying neutral status and protection of medical services and volunteers.[16]
The main principles which were maintained in the later Geneva Conventions:
- Relief to the wounded without any distinction as to nationality;
- Neutrality (inviolability) of medical personnel and medical establishments and units; and
- The distinctive sign of the red cross on a white ground.
The Convention of 1864 was replaced by the Geneva Conventions of 1906, 1929 and 1949 on the same subject and ceased to have effect after the last state party acceded to the later Conventions.[17]
- The Hague Conventions of 1899 and 1907
The Hague Conventions were one of the first formal instruments of the laws of war or war crimes under international law. The Hague Conventions of 1899 and 1907 are combinations or compilations of international treaties and declarations negotiated at two international peace conferences at the Hague in the Netherlands, May 18, 1899 and June 15 to October 18, 1907, respectively. The Hague Convention of 1899 is a single document that consists of three main treaties and three additional declarations: Convention for the Pacific Settlement of International Disputes,[18] Convention with respect to the Laws and Customs of War on Land,[19] Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864,[20] Declaration concerning the Prohibition of the Discharge of Projectiles and Explosives from Balloons or by Other New Analogous Methods,[21] Declaration concerning the Prohibition of the Use of Projectiles with the Sole Object to Spread Asphyxiating Poisonous Gases,[22] and Declaration concerning the Prohibition of the Use of Bullets which can Easily Expand or Change their Form inside the Human Body such as Bullets with a Hard Covering which does not Completely Cover the Core, or containing Indentations.[23]
The second Hague Convention of 1907 consists of thirteen treaties, of which twelve were ratified and entered into force, and one declaration.
- The Moscow Declaration of 1943
After the Second World War, major attempts were made in Europe and Asia to prosecute war criminals, for the atrocities committed during war especially by the Nazi regime of Adolf Hitler. The Moscow Declaration of 1943, issued by the United States, Great Britain, and the Soviet Union, and the Potsdam Declaration of 1945, issued by the United States, Great Britain, and China, addressed the issue of punishing war crimes committed by the German and Japanese governments, respectively.[24] These Declarations were the basis for the Nürnberg and Tokyo trials.
- The Four Geneva Conventions
The Geneva Conventions and their Additional Protocols makes up a major part of Public International Law, also known as the Humanitarian Law of Armed Conflicts. The purpose of the Conventions is to provide minimum protections, stipulated the standard of humane treatment, and guarantee the fundamental right of respect to individuals who become victims of armed conflicts.[25]
The Geneva Conventions are a series of treaties that address the treatment of civilians, prisoners of war (POWs) and soldiers who are otherwise rendered hors de combat (French, literally “outside the fight”), or incapable of fighting.[26]
The Geneva Conventions have been universally ratified by all Member States of the United Nations, while the Additional Protocols and other international humanitarian law treaties have not yet reached the same level of acceptance. Even though some of the treaties have not gain universal acceptance, many rules in them are considered as part of customary international law, and as such are binding in all States whether the States ratified or not, and applies to both international and non-international armed conflict.[27]
Convention I: The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
This Convention is elaborated on the principle of neutral status for the sick and wounded in the battle field. It protects wounded and infirm or deformed soldier, religious persons and medical personnel who are not taking active part in hostility against a Party.
The Convention ensures that victims of armed conflicts are not treated inhumanely or discriminated based on race, colour, sex, religion or faith, birth or wealth, etc. Article 3 of the Convention prohibits torture, assaults upon personal dignity, and execution without judgment. It also grants the right to proper medical treatment and care.
Convention II: The Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea
This Convention is similar to the first, it only extended the protections to victims of armed conflicts on the sea; it guarantees the protection of shipwrecked soldiers and other naval forces, including special protections afforded to hospital ships.[28]
Convention III: The Geneva Convention Relative to the Treatment of Prisoners of War
This Convention defined ‘Prisoner of War,’ broadened the categories of person entitled to be accorded the prisoner of war status and prescribed that such prisoners are properly and humanely treated as specified by Convention I and II.[29] Specifically, it forbids that prisoners are pressure, tortured or maimed to supply information and only prescribes that the names, ranks and serial numbers be given to their captors.
The Convention defined the conditions and places were prisoners of war can be kept in captivity, the kind of labour that is permissible, prescribes that they are adequately fed, the delivery of relief supplies or financial resources and regulates the kind of judicial proceedings that can be instituted against them.
Additionally, the Convention also established the principle that prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.[30]
Convention IV: the Convention Relative to the Protection of Civilian Persons in Time of War.
The bulk of this Convention deals with the status and treatment of protected persons, and distinguishes the situations of where foreigners are on the territory of one of the parties to the conflict from where civilians are in an occupied territory. It spells out the obligations of the occupying powers vis-a-vis the civilians in the occupied territory and details the humanitarian relief that is due to them.[31]
The convention prohibits, inter alia torture, collective punishment, the taking of hostages, the deportation of individuals or groups, offenses that constitute “outrages upon personal dignity,” the imposition of judicial sentences (including executions) without due-process guarantees, and discriminatory treatment on the basis of race, religion, nationality, or political beliefs.[32]
This Convention grants civilians protection from inhumane treatment and prohibits attack on civilian hospitals, medical transports etc. It also specifies the rights of internees (POWs) and saboteurs.[33]
Additional Protocol I: International conflicts
This protocol was signed to further restrict the treatment of protected persons. New rules regarding the treatment of a dead body, cultural artifacts, and dangerous targets such as dams and nuclear installations were introduced.[34]
Additional Protocol II: non-international conflicts
This protocol introduced new provisions for the protection and rights of civilians and further clarified the fundamentals of humane treatment. It enumerated the rights of interned persons and made provisions for the protection of those charged with crimes during the period of war.[35]
Additional Protocol III: additional distinctive emblem.
In 2005, this Protocol was adopted and it created an additional emblem, the Red Crystal, which has the same international status as the Red Cross and Red Crescent emblems, to the list of emblems used to identify neutral humanitarian aide workers.[36]
All the Geneva Conventions have Common Article 3 provisions which are applicable to non-international armed conflicts. Some of the common provisions are: the requirement of humane treatment for all persons in enemy hands and that the wounded, sick and shipwrecked be collected and cared for, without discrimination; prohibition of murder, mutilation, torture, the taking of hostages, unfair trial, and cruel, humiliating and degrading treatment; it grants the International Committee of the Red Cross and Red Crescent, the right to offer its services to the parties to the conflict, etc.[37]
- The Rome Statute of the International Criminal Court 1998
The Rome Statute of the International Criminal Court was adopted on July 17, 1998 and it established the International Criminal Court (ICC), its functions, structure and jurisdiction.[38] It established four core International crimes: genocide, crimes against humanity, war crimes, and the crime of aggression, of which, Article 29 of the Rome Statute provides that the crimes are not subject to any statute of limitations.
The ICC is vested with complementary jurisdiction with domestic courts and has the power to investigate and prosecute the international crimes listed in the Rome Statute only in situations where the States are not willing or unable to do so. The ICC has the jurisdiction to hold proceedings over these crimes if it is authorized by the United Nations Security Council or where the crime was committed in the territory of a State party or by a national of a State party.
Article 8 of the Rome Statute categorises war crimes as follows: Grave breaches of the 1949 Geneva Conventions, related to international armed conflict; Other serious violations of the laws and customs applicable in international armed conflict; Serious violations of Article 3 common to the four 1949 Geneva Conventions, related to armed conflict not of an international character; and other serious violations of the laws and customs applicable in armed conflict not of an international character.
The violation of any of the provisions of these conventions may amount to war crimes.
Enforcement of International Humanitarian Laws in Cases of War Crime
The Geneva Conventions provide for universal jurisdiction, which is contrary to the traditional (and limited) territorial jurisdiction that was designed to respect the principle of State sovereignty over their citizens.[39]
The implication of this doctrine of universal jurisdiction is that all signatory States of an international humanitarian law have jurisdiction regardless of the nationality the accused or the territoriality of the crime. This is based on the rationale that crimes such as genocide, crimes against humanity, torture, and war crimes are exceptionally grievous and have effect on the international community as a whole.[40]
There is a legal obligation on every State that is bound by the humanitarian customary laws or treaties to search for and prosecute individuals suspected of committing such crimes, regardless of the nationality of the suspect or victim, or of the place where the act was allegedly committed.[41]
The State is allowed to hand a suspect over to another State or an International Criminal Tribunal for trial. Where domestic laws do not prescribed to the exercise of universal jurisdiction, the State is under an obligation to enact a domestic legislation or legislative provision that would allow it to exercise such jurisdiction.[42]
Some trials of war crimes that enforced the provisions of the Geneva Conventions are discussed below:
In the trial of General Tanaka Hisakasu and Five Others by the United States Military Commission, Shanghai, in 1946, the Commission relied on the provisions of Articles 60-67 of the Geneva Prisoners of War Convention to sentence the first accused to death by hanging, the second and third accused to life imprisonment and the others to 50 years prison term respectively for authorizing, participating and approving the illegal, unfair and null trial that led to the unlawful execution of a United States Major.[43]
In another trial of Max Schmid by the United States General Military Government Court at Dachau, Germany, in 1947 a dead U.S airman was brought to the dispensary of the accused who was a medical officer in charge of a German dispensary. The accused severed the head from the dead body, boiled it, removed the skin and flesh, bleached the skull and kept it in his desk for months, and sent it home to his wife as a souvenir. The accused was charged of maltreating the dead and preventing honourable burial with regards to the provisions of Article 4 of the 1929 Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick of Armies in the Field, which obligates belligerents to bury or cremate dead bodies found and keep records. The Court found the accused guilty and sentenced him to ten (10) years imprisonment.[44]
Another Australian Military Court at Rabaul, where the prosecution alleged that several prisoners had been killed and their flesh eaten by the accused Tomiyasu Tisato (a First Lieutenant in the Japanese Army), the accused was found guilty for the murder of an unknown Indian prisoner of war and on the charge of cannibalism. He was sentenced to death but it was later commuted to fifteen (15) years imprisonment by the confirming officer.[45]
In the Maelzer case, the United States, Military Commission in Florence, relied on the provisions of Article 2(2) of the Geneva Convention which states that prisoners of war shall at all times be humanely treated and protected particularly against acts of violence, from insults and from public curiosity, to sentence the accused to ten (10) years imprisonment for forcing prisoners of war to march through the streets of Rome as in an ancient triumphal parade.[46]
Conclusion
The occurrence of wars and war related activities have continued since the existence of man. Some of the wars are within small groups while others have world wide impact like the First and Second World Wars. Consequently, customary practices and treaties have made provision prohibiting some actions and methods or means of war, in order to avoid the irreversible damage that such actions may cause. International and Municipal institutions have also been put in place to address issues of crimes committed in the wartime, by any person.
[14] first-geneva-convention-of-1864
[15] geneva_conventions_and_their_additional_protocols
[16] geneva_conventions_and_their_additional_protocols
[17] IHL Treaties – Geneva Convention, 1864
[18] The Avalon Project – Laws of War
[19] The Avalon Project – Laws of War : Laws and Customs of War on Land
[20]The Avalon Project : Laws of War – Adaptation to Maritime Warfare of Principles of Geneva Convention of 1864 (Hague, III)
[21]The Avalon Project : Laws of War – Adaptation to Maritime Warfare of Principles of Geneva Convention of 1864 (Hague, III)
[22] Laws of War – Declaration on the Use of Projectiles the Object of Which is the Diffusion of Asphyxiating or Deleterious Gases;
[23] Laws of War – Declaration on the Use of Bullets Which Expand or Flatten Easily in the Human Body;
[25]geneva_conventions_and_their_additional_protocols
[26] geneva_conventions_and_their_additional_protocols
[27] geneva_conventions_and_their_additional_protocols
[28] geneva_conventions_and_their_additional_protocols
[29] treaties-customary-law/geneva-conventions/overview-geneva-conventions
[30] treaties-customary-law/geneva-conventions/overview-geneva-conventions
[31]treaties-customary-law/geneva-conventions/overview-geneva-conventions
[33] geneva_conventions_and_their_additional_protocols
[34] geneva_conventions_and_their_additional_protocols
[35] geneva_conventions_and_their_additional_protocols
[36] customary-law/geneva-conventions/overview-geneva-conventions
[37] geneva_conventions_and_their_additional_protocols
[38] Rome Statute of the International Criminal Court, 1998 (un.org)
[39] geneva_conventions_and_their_additional_protocols
[40]geneva_conventions_and_their_additional_protocols
[41] geneva_conventions_and_their_additional_protocols
[42] geneva_conventions_and_their_additional_protocols
[43] lTRIAL OF GENERAL TANAKA HISAKASU
[46] TRIAL OF LIEUTENANT GENERAL KURT MAELZER