The criminal law paradigm shifts dramatically in the context of war. Combatants are effectively immunized from liability for a range of conduct—from criminal trespass or destruction of property all the way to homicide—that would trigger criminal liability during peacetime. War crimes, then, are not simply crimes that occur during a war. Instead, the term is reserved for serious or grave violations of the laws and customs of armed conflict.
There is no single source or codification of what acts constitute a war crime and there is some variation on what conduct should even be criminalized. Precise definitions of war crimes begin with identifying the range of international and domestic laws, customs, and norms these crimes are said to violate. Today, the conduct that constitutes war crimes is found in the law of armed conflict, which consists of at least six pinnacle treaties, customary international law, the founding treaties of international courts, states’ military manuals, and even states’ domestic criminal codes.
Purposes of Punishing War Crimes
The criminalization of violations of the law of armed conflict is not a new concept. Unorthodox practices during war have been punished since the inception of organized warfare in order to enforce the ethical boundaries of war and make war more humane. War crimes are punished to protect humanity, maintain peace and security, and prevent future occurrences of such conduct. Their criminalization puts soldiers on notice that egregious criminal actions are never justified and will not be tolerated even in the more permissive context of war.
Defining and prosecuting war crimes also serves strategic military goals. Reciprocity and the cooperation of local populations are important concepts in warfare. Following the end of hostilities, states need the cooperation of local populations to achieve and maintain peace. This is help the locals may not be inclined to give if they were victimized by military forces. Military leaders also do not want their soldiers to be victims of inappropriate, unprovoked, or retributive warfare conduct, so they have incentives not to exceed the bounds of acceptable warfare conduct themselves.
The Modern Trend: International Tribunals
Although there has long been some measure of international consensus about what conduct constitutes a war crime, the 20th century saw the rise of concerted international action to address violations. After World War II, the trials of war criminals at Nuremberg and Tokyo marked the beginning of the modern era of international war crimes prosecutions. Since 1993, ad hoc international criminal tribunals (for the former Yugoslavia, Rwanda, and Sierra Leone), the permanent International Criminal Court (ICC), and various national courts have all prosecuted and convicted both combatants and civilians for war crimes perpetrated against enemy soldiers and civilians. The International Criminal Tribunal for the former Yugoslavia (ICTY), established in 1993, has indicted 161 individuals for crimes that occurred during the Yugoslav Wars of the 1990s. The International Criminal Tribunal for
Rwanda, established in 1994, has completed 73 cases. The Special Court for Sierra Leone, founded in 2000, has indicted 13 individuals. The ICC has tried 18 cases.
Sources of Law
Historically, customary international law, the norms recognized by states, was the source of war crimes. Today, those customary laws of armed conflict have been codified in the four Geneva Conventions of 1949 and the two Additional Protocols of 1977. These six treaties are now the framework for the law of armed conflict, also known as international humanitarian law (IHL), and are the main sources for what actions qualify as war crimes. States’ laws and military manuals typically consider all violations of IHL to be war crimes. The ICC and the ad hoc tribunals, however, have not adopted that broader definition; they only recognize the crimes enumerated in their establishing statutes as war crimes.
The Geneva Conventions and the Additional Protocols regulate conduct during armed conflicts and establish that the deviation from appropriate conduct is unlawful and deemed a war crime. Until relatively recently, all definitions, treaties, and practices related to war crimes limited their occurrence to international armed conflicts (involving two or more states fighting against each other). In its seminal 1995 Tadić decision, however, the ICTY held that violations of IHL can occur in noninternational armed conflicts as well. Noninternational armed conflicts include both civil wars and protracted armed violence or large-scale clashes between a government and an organized armed group. Subsequent efforts to define war crimes—most notably, in the Rome Statute which created the ICC—have adopted the ICTY’s position.
In international armed conflicts, all articles of the four Geneva Conventions and Additional Protocol I apply; thus, any violation of the Geneva Conventions or Additional Protocol I can be a war crime. In noninternational armed conflicts only Article 3 common to the four Geneva Conventions and Additional Protocol II apply and only their violation can constitute a war crime.
In addition to the Geneva Conventions, war crimes are also codified in the treaties and statutes that establish ad hoc international criminal tribunals and enumerate crimes over which the courts have jurisdiction. The ICTY, the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL) have jurisdiction over specific crimes that occurred within the territory of those countries during a designated time frame that corresponds to armed conflicts that took place within the states. For example, the ICTY statute gives the court jurisdiction over genocide, crimes against humanity, war crimes, and violations of the customs of war that occurred in Yugoslavia from 1991 onward. The ICTR has jurisdiction over genocide, crimes against humanity, and war crimes that occurred in Rwanda in 1994. The SCSL has jurisdiction over crimes against humanity, war crimes, and serious violations of IHL that have occurred in Sierra Leone since 1996.
International Criminal Court
The ICC is a permanent court established by the Rome Statute in 1998 and began hearing cases in 2002, when the treaty entered into force. The ICC is authorized to hear cases regarding genocide, crimes against humanity, war crimes, and beginning in 2017, crimes of aggression. The ICC is a court of last resort, acting only when states are unable or unwilling to prosecute the conduct. There are a finite number of situations in which the court has jurisdiction: if the accused is a national of a state party, if the crime took place in the territory of a state party, if the situation is referred to the court by the United Nations or a state, or if the ICC prosecutor initiates an investigation. Unlike the geographically and temporally limited jurisdiction of the ad hoc Yugoslavia, Rwanda, or Sierra Leone tribunals, ICC jurisdiction is offense-based. The ICC has jurisdiction over offenses that occurred after 2002 in the territory of any of the 121 state parties or involving a national of the 121 state parties.
Article 8 of the Rome Statute defines in detail the specific acts that qualify as war crimes and divides them into two types: grave breaches and other serious violations of IHL. Like the Geneva Conventions, however, different provisions apply to international and noninternational armed conflicts. Similar conduct is criminalized in both types of conflicts but the list of 26 possible war crimes in an international armed conflict—enumerated in Articles 8(2)(a) and 8(2)(b)—is more than twice as long as the list of 12 war crimes that can occur in a noninternational armed conflict— enumerated in Articles 8(2)(c) and 8(2)(e).
The Rome Statute’s article on war crimes is more inclusive than the lists of war crimes found in the Geneva Conventions and in the ad hoc tribunals’ statutes. For example, rape and other gender crimes such as forced pregnancies and marriage are not included in the Geneva Conventions, despite having always been considered war crimes as a matter of custom. The Rome Statute includes those crimes, and many others, giving customary war crimes codification. In the 15 years since it was passed, the Rome Statute has become the authoritative source on war crimes.
Categorizing War Crimes
Crimes classified as war crimes are not dependent on solely the target or the act; instead, war crimes are criminalized due to the target, the act, or both. War crimes can be divided into three categories: (1) crimes that endanger protected persons or objects (i.e., causing death, injury, destruction of property, or attacks on medical units), (2) crimes that breach important values (e.g., abuse of the dead, rape, humiliating or degrading treatment), and (3) acts that involve abuse of trust (e.g., perfidy, treachery).
Many war crimes (e.g., killing and causing great suffering) require the highest level of criminal intent or mens rea: that the violation be willful or purposeful. Other war crimes, like the crime of launching an indiscriminate attack on a civilian population, require knowledge, a slightly lesser level of intent. While some scholars have argued that gross negligence might be sufficient mens rea for some limited war crimes (such as command responsibility), many agree that recklessness is the appropriate minimum level of intent for most offenses.
Defenses
There are some general defenses to war crimes, but their use is heavily dependent upon the facts of the case. Obedience to superior orders was used during the Nuremberg Trials and was then, and has since been, generally rejected as a defense. It is only a viable defense if the defendant can show three elements: (1) he was required to obey the order, (2) he did not know the order was unlawful, and (3) the order on its face was not manifestly unlawful.
Historically, current and former heads of state had immunity for war crimes they committed or their forces committed. That defense is no longer valid under the statutes of international courts. Other defenses to war crimes include the same types of defenses that criminal defendants regularly assert: duress, self-defense, and lack of mental responsibility (including insanity, involuntary intoxication, and mistakes of fact or law).
Domestic Law
War crimes may also be codified in states’ domestic criminal codes, military manuals, or other legislation. At least 99 countries criminalize violations of IHL. In about one-third of those states, violations that occur in both international and noninternational armed conflicts qualify, but in the remaining two-thirds of those states, only violations that occur in noninternational armed conflicts are criminalized. Pursuant to Geneva Conventions obligations, most states provide their courts with universal jurisdiction, meaning the courts can try an individual for war crimes irrespective of where the crime occurred. In Germany, for example, violations of any international crime can be prosecuted, whether or not the crimes occurred within Germany. Few states, however, have actually exercised universal jurisdiction. Other countries (like Bangladesh, for example) have limited their jurisdiction over war crimes to those that occur within the territory of the state. Other states have a mix of both: Canada requires the defendant to have some connection to the country, whether through Canadian citizenship or employment, or involvement in an armed conflict with Canada.
The United States is not a party to the Rome Statute and does not recognize the jurisdiction of the ICC over U.S. citizens. Referral of U.S. citizens to the ICC by the United Nations (UN) is still legally permissible, but U.S. veto power in the UN Security Council could prevent such action. Instead, the United States has criminalized the equivalent behavior in military conduct manuals and the military and federal criminal codes. If the United States were to prosecute war crimes, the paradigm under which the individual is charged would depend on their status: civilian, soldier, or enemy combatant.
The U.S. military prohibits soldiers from violating IHL in military manuals, such as the Army Field Manual, and prosecutes soldiers under the Uniform Code of Military Justice (UCMJ), which is the criminal code for U.S. military forces, or under the War Crimes Act of 1996. Under articles 77-134 of the UCMJ, known as the punitive articles, military personnel may face courts-martial for crimes that parallel breaches of the Geneva Conventions, like murder, torture, and rape. (The punitive articles do not, however, incorporate or even directly reference the Geneva Conventions.) Article 18 of the UCMJ confers jurisdiction over any violation of IHL to military courts. This article permits not only U.S. military forces but also any other individuals, such as captives, to be court-martialed for violating IHL.
The United States may also prosecute war criminals under the War Crimes Act. The act gives federal courts criminal jurisdiction over any person who commits a war crime if either the perpetrator or the victim is a member of the U.S. military or a U.S. national. The War Crimes Act differs from the UCMJ in two key aspects. Unlike the punitive articles of the UCMJ, the War Crimes Act explicitly includes in the definition of war crimes grave breaches of the Geneva Conventions. Additionally, the War Crimes Act extends jurisdiction over former soldiers, permitting prosecutions for war crimes that were not discovered until after the soldier left the service and no longer subject to military jurisdiction. The Military Extraterritorial Jurisdiction Act (MEJA) also gives federal courts jurisdiction over former soldiers for acts that occurred while the soldier was on active duty.
In 2005, fearing that the War Crimes Act could be used to prosecute U.S. military forces and other government agents for aggressive interrogations in the War on Terror, President George W. Bush pushed for amendments to the act. The Detainee Treatment Act, passed in 2005, created immunity for personnel who engaged in interrogations that were authorized by government officials, but in retrospect may have violated the Geneva Conventions. The act, however, did not extend immunity to the officials who authorized such actions. The Military Commission Act of 2006, which deals with prosecutions of enemy detainees, then broadened retroactive protection to include not only those involved in interrogations that might have violated IHL but also government officials who developed or sanctioned the aggressive interrogations. To do this, the Military Commission Act limited the definition of the qualifying grave breaches under the War Crimes Act and then redefined the remaining crimes using narrower definitions.
There has yet to be a prosecution under the War Crimes Act. Instead, it was modified when it appeared as though it could be used against the U.S. military. There have only been a dozen cases under MEJA in which former soldiers were prosecuted. With instances of war crimes, U.S. military forces are typically charged with the equivalent crime under the UCMJ. For example, after events at Abu Ghraib prison came to light, U.S. military personnel were charged with crimes under the UCMJ. Although the violations alleged were consistent with grave breaches of the Fourth Geneva Convention, U.S. soldiers were charged with (and later convicted of) only analogous violations of the UCMJ.
Bibliography:
- Bassiouni, M. Cherif. Statute of the International Criminal Court: A Documentary History. Ardsley, NY: Transnational Publishing, 1998.
- Cassesse, Antonio. International Criminal Law. New York: Oxford University Press, 2008.
- Corn, Geoffrey S., et al. Laws of Armed Conflict. New York: Wolters, Kluwer Law & Business, 2012.
- International Committee on the Red Cross. “Customary IHL, Rule 157: Jurisdiction Over War Crimes” (2013). http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule157 (Accessed March 2013).
- La Haye, Eve. War Crimes in Internal Armed Conflicts. New York: Cambridge University Press, 2008.
- Schabas, William A. War Crimes and Human Rights: Essays on the Death Penalty, Justice and Accountability. London: Cameron May, 2008.
- Solis, Gary. The Law of Armed Conflict: International Humanitarian Law in War. New York: Cambridge University Press, 2010.
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