War crime

A war crime is a serious violation of the laws and customs of war (also known as international humanitarian law) giving rise to individual criminal responsibility. Examples of war crimes include:

• initiating a war of aggression
• murdering, mistreating, or deporting civilian residents of an occupied territory to slave labor camps
• murdering or mistreating prisoners of war or civilian internees
• forcing protected persons to serve in the forces of a hostile power
• killing hostages
• killing or punishing spies or other persons convicted of war crimes without a fair trial
• wantonly destroying cities, towns, villages, or other objects not warranted by military necessity

Similar concepts, such as perfidy, have existed for many centuries as customs between countries, but these customs were first codified as international law in the Hague Conventions of 1899 and 1907. The modern definition of a war crime was further developed under the auspices of the Nuremberg Trials, based on the definition in the London Charter that was published on August 8, 1945. Along with war crimes, the charter also defined crimes against peace and crimes against humanity, which are often committed during wartime and in concert with war crimes.

Article 22 of The Hague IV ("Laws of War: Laws and Customs of War on Land (Hague IV); October 18, 1907") states that: "The right of belligerents to adopt means of injuring the enemy is not unlimited." Over the last century, many other treaties have introduced positive laws that place constraints on belligerents. Some of the provisions, such as those in the The Hague and the Geneva Conventions and the Genocide Convention, are considered to be part of customary international law, and are binding on all. Others are only binding on individuals if the belligerent power to which they belong is a party to the treaty which introduced the constraint.

History

Early examples

The trial of Peter von Hagenbach by an ad hoc tribunal of the Holy Roman Empire in 1474, was the first "international" war crimes trial, and also of command responsibility. He was convicted and beheaded for crimes that "he as a knight was deemed to have a duty to prevent", although he had argued that he was only "following orders".

In 1654 a Major Connaught (Royalist) was tried at Chester Assizes and hanged for his part in the massacre of villagers in the church at the village of Boughton, Cheshire in 1643. Twelve villagers were smoked out, stripped naked and had their throats cut. He was hanged at the scene of the crime having been convicted of striking a blow to the head of John Fowler with an axe.

In 1865, Henry Wirz, a Confederate officer, was held accountable by a military tribunal and hanged for appalling conditions at Andersonville Prison where many Union POWs died during the American Civil War.

Hague Conventions

The Hague Conventions were international treaties negotiated at the First and Second Peace Conferences at The Hague, Netherlands, in 1899 and 1907, respectively, and were, along with the Geneva Conventions, among the first formal statements of the laws of war and war crimes in the nascent body of secular international law.

Geneva Conventions

The Geneva Conventions are four related treaties adopted and continuously expanded from 1864 to 1949 that represent a legal basis and framework for the conduct of war under international law. Every single member state of the United Nations has currently ratified the conventions, which are universally accepted as customary international law, applicable to every situation of armed conflict in the world. However, the Additional Protocols to the Geneva Conventions adopted in 1977 containing the most pertinent, detailed and virulent protections of international humanitarian law for persons and objects in modern warfare are still not ratified by a number of States continuously engaged in armed conflicts, namely the United States, Israel, India, Pakistan, Iraq, Iran, and others. Accordingly, states retain different codes and values with regard to wartime conduct. Some signatories have routinely violated the Geneva Conventions in a way which either uses the ambiguities of law or political maneuvering to sidestep the laws' formalities and principles.

Three conventions were revised and expanded with the fourth one added in 1949:

• First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field was adopted in 1864, significantly revised and replaced by the 1906 version, the 1929 version, and later the First Geneva Convention of 1949).
• Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea was adopted in 1906, significantly revised and replaced by the Second Geneva Convention of 1949).
• Third Geneva Convention relative to the Treatment of Prisoners of War (Convention relative to the Treatment of Prisoners of War was adopted in 1929, significantly revised and replaced by the Third Geneva Convention of 1949).
• Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (first adopted in 1949, based on parts of the 1907 Hague Convention IV).

Two Additional Protocols were adopted in 1977 with the third one added in 2005, completing and updating the Geneva Conventions:

• Protocol I (1977) relating to the Protection of Victims of International Armed Conflicts.
• Protocol II (1977) relating to the Protection of Victims of Non-International Armed Conflicts.
• Protocol III (2005) relating to the Adoption of an Additional Distinctive Emblem.

Leipzig War Crimes Trial

A small number of German military personnel of the First World War were tried in 1921 by the German Supreme Court for alleged war crimes.

London Charter / Nuremberg Trials 1945

The modern concept of war crime was further developed under the auspices of the Nuremberg Trials based on the definition in the London Charter that was published on August 8, 1945. (Also see Nuremberg Principles.) Along with war crimes the charter also defined crimes against peace and crimes against humanity, which are often committed during wars and in concert with war crimes.

International Military Tribunal for the Far East 1946

Also known as the Tokyo Trial, the Tokyo War Crimes Tribunal or simply as the Tribunal, it was convened on May 3, 1946 to try the leaders of the Empire of Japan for three types of crimes: "Class A" (crimes against peace), "Class B" (war crimes), and "Class C" (crimes against humanity), committed during World War II.

International Criminal Court 2002

On July 1, 2002, the International Criminal Court, a treaty-based court located in The Hague, came into being for the prosecution of war crimes committed on or after that date. Several nations, most notably the United States, China, Russia, and Israel, have criticized the court. The United States still participates as an observer. Article 12 of the Rome Statute provides jurisdiction over the citizens of non-contracting states in the event that they are accused of committing crimes in the territory of one of the state parties.

War crimes are defined in the statute that established the International Criminal Court, which includes:

1. Grave breaches of the Geneva Conventions, such as:
   1. Willful killing, or causing great suffering or serious injury to body or health
   2. Torture or inhumane treatment
   3. Unlawful wanton destruction or appropriation of property
   4. Forcing a prisoner of war to serve in the forces of a hostile power
   5. Depriving a prisoner of war of a fair trial
   6. Unlawful deportation, confinement or transfer
   7. Taking hostages
2. The following acts as part of an international conflict:
   1. Directing attacks against civilians
   2. Directing attacks against humanitarian workers or UN peacekeepers
   3. Killing a surrendered combatant
   4. Misusing a flag of truce
   5. Settlement of occupied territory
   6. Deportation of inhabitants of occupied territory
   7. Using poison weapons
   8. Using civilians as shields
   9. Using child soldiers
   10. Firing upon a Combat Medic with clear insignia.
3. The following acts as part of a non-international conflict:
   1. Murder, cruel or degrading treatment and torture
   2. Directing attacks against civilians, humanitarian workers or UN peacekeepers
   3. Taking hostages
   4. Summary execution
   5. Pillage
   6. Rape, sexual slavery, forced prostitution or forced pregnancy

However the court only has jurisdiction over these crimes where they are "part of a plan or policy or as part of a large-scale commission of such crimes".

Prominent indictees

Heads of state and government

To date, the present and former heads of state and heads of government that have been charged with war crimes include:

• German Großadmiral and President Karl Dönitz and Japanese Prime Ministers and Generals Hideki Tōjō and Kuniaki Koiso in the aftermath of World War II.
• Former Yugoslav President Slobodan MiloÅ¡ević was brought to trial for alleged war crimes, but died in custody in 2006 before the trial could be concluded after more than 4 years of proceedings.
• Former Liberian President Charles G. Taylor was also brought to The Hague charged with war crimes; his trial stretched from 2007 to March 2011. He was convicted in April 2012.
• Former Bosnian Serb President Radovan Karadžić was arrested in Belgrade on July 18, 2008 and brought before Belgrade's War Crimes Court a few days after. He was extradited to the Netherlands, and is currently in The Hague, in the custody of the International Criminal Tribunal for the former Yugoslavia. The trial began in 2010 and is expected to continue until 2014.

• Omar al-Bashir, current head of state of Sudan, for actions in Darfur.
• Former Libyan leader Muammar Gaddafi was indicted for allegedly ordering the killings of protesters and civilians during the 2011 Libyan civil war, however he was killed before he could stand trial in October 2011.

Other prominent indictees

• Yoshijirō Umezu, a general in the Imperial Japanese Army
• Seishirō Itagaki, War minister of the Empire of Japan
• Hermann Göring, Commander in Chief of the Luftwaffe.
• Ernst Kaltenbrunner and Adolf Eichmannâ€"high-ranking members of the SS.
• Wilhelm Keitelâ€"Generalfeldmarschall, head of the Oberkommando der Wehrmacht.
• Erich Raederâ€"Großadmiral, Commander in Chief of the Kriegsmarine.
• Albert Speerâ€"Minister of Armaments and War Production in Nazi Germany 1942â€"45.
• William Calley-former U.S. Army officer found guilty of murder for his role in the My Lai Massacre
• Ali Hassan Abd al-Majid al-Tikriti, more commonly known by his nickname "Chemical Ali", executed by post-Ba'athist Iraq for his leadership of the gassing of Kurdish villages during the Iran-Iraq War; also governor of illegally occupied Kuwait during the First Gulf War
• Ratko Mladić, indicted for genocide amongst other violations of humanitarian law during the Bosnian War; he was captured in Serbia in May 2011 and has been extradited to face trial in The Hague,
• Joseph Kony, leader of the Lord's Resistance Army, guerrilla group which used to operate in Uganda.

Definition

War crimes are serious violations of the rules of customary and treaty law concerning international humanitarian law that have become accepted as criminal offenses for which there is individual responsibility. Colloquial definitions of war crime include violations of established protections of the laws of war, but also include failures to adhere to norms of procedure and rules of battle, such as attacking those displaying a peaceful flag of truce, or using that same flag as a ruse to mount an attack on enemy troops. The use of chemical and biological weapons in warfare are also prohibited by numerous chemical arms control agreements and the Biological Weapons Convention. Wearing enemy uniforms or civilian clothes to infiltrate enemy lines for espionage or sabotage missions is a legitimate ruse of war, though fighting in combat or assassinating individuals, even if they are military targets, behind enemy lines while so disguised is not, as it constitutes unlawful perfidy. Attacking enemy troops while they are being deployed by way of a parachute is not a war crime. However, Protocol I, Article 42 of the Geneva Conventions explicitly forbids attacking parachutists who eject from disabled aircraft and surrendering parachutists once landed. Article 30 of the 1907 Hague Convention IV - The Laws and Customs of War on Land explicitly prohibits belligerents to punish enemy spies without previous trial. War crimes include such acts as mistreatment of prisoners of war or civilians. In 2008, the U.N. Security Council adopted Resolution 1820, which noted that "rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide"; see also war rape. War crimes are sometimes part of instances of mass murder and genocide though these crimes are more broadly covered under international humanitarian law described as crimes against humanity.

War crimes also included deliberate attacks on citizens and property of neutral states as they fall under the category of non-combatants, as at the Japanese attack on Pearl Harbor. As the attack on Pearl Harbor happened without a declaration of war, without explicit warning, and went out of proportion, all military and civilian casualties at the harbor were officially non-combatants, the military were not ready for face up to the attack and the attack was declared by the Tokyo Trials to go beyond justification of military necessity and therefore constituted a war crime.

War crimes are significant in international humanitarian law because it is an area where international tribunals such as the Nuremberg Trials and Tokyo Trials have been convened. Recent examples are the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, which were established by the UN Security Council acting under Chapter VIII of the UN Charter.

Under the Nuremberg Principles, war crimes are different from crimes against peace which is planning, preparing, initiating, or waging a war of aggression, or a war in violation of international treaties, agreements, or assurances. Because the definition of a state of "war" may be debated, the term "war crime" itself has seen different usage under different systems of international and military law. It has some degree of application outside of what some may consider to be a state of "war", but in areas where conflicts persist enough to constitute social instability.

The legalities of war have sometimes been accused of containing favoritism toward the winners ("Victor's justice"), as some controversies have not been ruled as war crimes. Some examples include the Allies' destruction of Axis cities during World War II, such as the firebombing of Dresden, the Operation Meetinghouse raid on Tokyo (the most destructive single bombing raid in history) and the atomic bombings of Hiroshima and Nagasaki; and the mass killing of Biharies by Kader Siddique and Mukti Bahini before or after victory of Bangladesh Liberation War in Bangladesh between 1971 and 1972.

In regard to the strategic bombing during World War II, it should be noticed that at the time, there was no international treaty or instrument protecting a civilian population specifically from attack by aircraft, therefore the aerial attacks on civilians were not officially war crimes. Because of this, the Allies at the trials in Nuremberg and Tokyo never prosecuted the Germans, including Luftwaffe commander-in-chief Hermann Göring, for the bombing raids on Warsaw, Rotterdam, and British cities during the Blitz as well as the indiscriminate attacks on Allied cities with V-1 flying bombs and V-2 rockets nor the Japanese for the aerial attacks on crowded Chinese cities. Although there are no treaties specific to aerial warfare, Protocol 1, Article 51 of the Geneva Conventions explicitly prohibits the bombardment of cities where civilian population might be concentrated regardless of any method. (see Aerial bombardment and international law).

Controversy aroused when the Allies re-designated German POWs (under the protection of the 1929 Geneva Convention on Prisoners of War) as Disarmed Enemy Forces (allegedly unprotected by the 1929 Geneva Convention on Prisoners of War), many of which then were used for forced labor such as clearing minefields. By December 1945, six months after the war had ended, it was estimated by French authorities that 2,000 German prisoners were still being killed or maimed each month in mine-clearing accidents. The wording of the 1949 Third Geneva Convention was intentionally altered from that of the 1929 convention so that soldiers who "fall into the power" following surrender or mass capitulation of an enemy are now protected as well as those taken prisoner in the course of fighting.

See also

Footnotes

Further reading

• Robert Cryer (2007). An introduction to international criminal law and procedure. Cambridge University Press. ISBN 978-0-521-87609-4. 
• Yôrām Dinstein (2004). The conduct of hostilities under the law of international armed conflict. Cambridge University Press. ISBN 978-0-521-54227-2. Retrieved November 14, 2010. 
• Hagopian, Patrick (2013). American Immunity: War Crimes and the Limits of International Law. Amherst, MA: University of Massachusetts Press.
• Horvitz, Leslie Alan; Catherwood, Christopher (2011). Encyclopedia of War Crimes & Genocide (Hardcover) 2 (Revised ed.). New York: Facts on File. ISBN 978-0816080830.  ISBN 0816080836
• Malcolm N. Shaw (November 24, 2008). International law. Cambridge University Press. ISBN 978-0-521-72814-0. Retrieved November 14, 2010. 
• Gary D. Solis (2010). The Law of Armed Conflict: International Humanitarian Law in War. Cambridge University Press. ISBN 978-0-521-87088-7. Retrieved November 14, 2010. 

External links

• "International criminal jurisdiction". International Committee of the Red Cross. 
• "Cambodia Tribunal Monitor". Northwestern University School of Law Center for International Human Rights and Documentation Center of Cambodia. Retrieved December 17, 2008. 
• Burns, John (January 30, 2008). "Quarter, Giving No". Crimes of War Project. Retrieved December 17, 2008. 
• "War Crimes: Videos, Forums and Communities". War Crimes Limited (UK). 2008. Retrieved December 17, 2008. 
• "Video: Not a War Criminal". Retrieved December 17, 2008. 
• War Crimes: Responsibility and the Psychology of Atrocity
• Human Rights First; Command's Responsibility: Detainee Deaths in U.S. Custody in Iraq and Afghanistan
• TheRule of Law in Armed Conflicts Project
• Documents and Resources on War, War Crimes and Genocide
• Iraqi Special Tribunal
• Crimes of War Project
• Rome Treaty of the International Criminal Court
• Special Court for Sierra Leone
• UN International Criminal Tribunal for the former Yugoslavia
• UN International Criminal Tribunal for Rwanda
• Ad-Hoc Court for East Timor
• CBC Digital Archives -Fleeing Justice: War Criminals in Canada
• A Criminological Analysis of the Invasion and Occupation of Iraq By Ronald C. Kramer and Raymond J. Michalowski
• Sri Lanka's Killing Fields: War Crimes Unpunished on YouTube