War crime

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A U.S. soldier observing victims of the Malmedy massacre (17 December 1944), where 84 U.S. prisoners of war were murdered by the Waffen-SS in Belgium Malmedy Massacre.jpg
A U.S. soldier observing victims of the Malmedy massacre (17 December 1944), where 84 U.S. prisoners of war were murdered by the Waffen-SS in Belgium

A war crime is a violation of the laws of war that gives rise to individual criminal responsibility for actions by combatants in action, such as intentionally killing civilians or intentionally killing prisoners of war, torture, taking hostages, unnecessarily destroying civilian property, deception by perfidy, wartime sexual violence, pillaging, and for any individual that is part of the command structure who orders any attempt to committing mass killings including genocide or ethnic cleansing, the granting of no quarter despite surrender, the conscription of children in the military and flouting the legal distinctions of proportionality and military necessity. [1]

Contents

The formal concept of war crimes emerged from the codification of the customary international law that applied to warfare between sovereign states, such as the Lieber Code (1863) of the Union Army in the American Civil War and the Hague Conventions of 1899 and 1907 for international war. [1] In the aftermath of the Second World War, the war-crime trials of the leaders of the Axis powers established the Nuremberg principles of law, such as that international criminal law defines what is a war crime. In 1949, the Geneva Conventions legally defined new war crimes and established that states could exercise universal jurisdiction over war criminals. [1] In the late 20th century and early 21st century, international courts extrapolated and defined additional categories of war crimes applicable to a civil war. [1]

History

A ditch full of the bodies of Chinese civilians killed by Japanese soldiers in Suzhou, China, 1938 Chinese killed by Japanese Army in a ditch, Hsuchow.jpg
A ditch full of the bodies of Chinese civilians killed by Japanese soldiers in Suzhou, China, 1938

Early examples

In 1474, the first trial for a war crime was that of Peter von Hagenbach, realised by an ad hoc tribunal of the Holy Roman Empire, for his command responsibility for the actions of his soldiers, because "he, as a knight, was deemed to have a duty to prevent" criminal behaviour by a military force. Despite having argued that he had obeyed superior orders, von Hagenbach was convicted, condemned to death, and beheaded. [2] [3]

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.

Lieber Code

The Lieber Code was written early in the American Civil War and President Abraham Lincoln issued as General Order 100 on April 24, 1863, just months after the military executions at Mankato, Minnesota. General Order 100, Instructions for the Government of the Armies of the United States in the Field (Lieber Code) was written by Franz Lieber, a German lawyer, political philosopher, and veteran of the Napoleonic Wars. Lincoln made the Code military law for all wartime conduct of the Union Army. It defined command responsibility for war crimes and crimes against humanity as well as stated the military responsibilities of the Union soldier fighting the Confederate States of America. [4]

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. The Additional Protocols to the Geneva Conventions adopted in 1977 containing the most pertinent, detailed and comprehensive protections of international humanitarian law for persons and objects in modern warfare are still not ratified by several states continuously engaged in armed conflicts, namely the United States, Israel, India, Pakistan, Iraq, Iran, and others. Accordingly, states retain different codes and values about wartime conduct. Some signatories have routinely violated the Geneva Conventions in a way that either uses the ambiguities of law or political maneuvering to sidestep the laws' formalities and principles.

The first three conventions have been revised and expanded, with the fourth one added in 1949:

HRW wrote that the Saudi Arabian-led military intervention in Yemen that began on March 26, 2015, involved airstrikes in apparent violation of the laws of war. Destroyed house in the south of Sanaa 12-6-2015-3.jpg
HRW wrote that the Saudi Arabian-led military intervention in Yemen that began on March 26, 2015, involved airstrikes in apparent violation of the laws of war.

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

Leipzig trials

Just after WWI, world governments started to try and systematically create a code for how war crimes would be defined. Their first outline of a law was "Instructions for the Government of Armies of the United States in the Field"—also known as the "Lieber Code." [9] 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 (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.

Formation of the International Criminal Court

Bodies of some of the hundreds of Vietnamese villagers who were killed by U.S. soldiers during the My Lai Massacre My Lai massacre.jpg
Bodies of some of the hundreds of Vietnamese villagers who were killed by U.S. soldiers during the My Lai Massacre

On July 1, 2002, the International Criminal Court (ICC), 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 if they are accused of committing crimes in the territory of one of the state parties. [10]

The ICC only has jurisdiction over these crimes when they are "part of a plan or policy or as part of a large-scale commission of such crimes". [11]

Prominent indictees

Heads of state and government

Former Sudanese President Omar al-Bashir (left) and Russian President Vladimir Putin (right), both charged by the ICC for war crimes Vladimir Putin and Omar al-Bashir (2017-11-23) 02.jpg
Former Sudanese President Omar al-Bashir (left) and Russian President Vladimir Putin (right), both charged by the ICC for war crimes
2013 Shahbag protests demanding the death penalty for the war criminals of the 1971 Bangladesh Liberation War Sahbag.jpg
2013 Shahbag protests demanding the death penalty for the war criminals of the 1971 Bangladesh Liberation War

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

Other

Definition

A picture taken by the Polish Underground of Nazi Secret Police rounding up Polish intelligentsia at Palmiry near Warsaw in 1940 for mass execution (AB-Aktion) Polish hostages preparing by Nazi Germans for mass execution 1940.jpg
A picture taken by the Polish Underground of Nazi Secret Police rounding up Polish intelligentsia at Palmiry near Warsaw in 1940 for mass execution ( AB-Aktion )

War crimes are serious violations of the rules of customary and treaty law concerning international humanitarian law, criminal offenses for which there is individual responsibility. [28]

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 behind enemy lines while so disguised is not, as it constitutes unlawful perfidy. [29] [30] [31] [32] Attacking enemy troops while they are being deployed by way of a parachute is not a war crime. [33] Protocol I, Article 42 of the Geneva Conventions explicitly forbids attacking parachutists who eject from disabled aircraft and surrendering parachutists once landed. [34] Article 30 of the 1907 Hague Convention IV – The Laws and Customs of War on Land explicitly forbids belligerents to punish enemy spies without previous trial. [35]

The rule of war, also known as the Law of Armed Conflict, permits belligerents to engage in combat. A war crime occurs when superfluous injury or unnecessary suffering is inflicted upon an enemy. [36]

War crimes also include such acts as mistreatment of prisoners of war or civilians. 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. 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 wartime sexual violence. [37] In 2016, the International Criminal Court convicted someone of sexual violence for the first time; specifically, they added rape to a war crimes conviction of Congo Vice President Jean-Pierre Bemba Gombo. [38]

A mass grave of Soviet prisoners of war killed by Germans in Stalag 307, Deblin, German-occupied Poland Soviet soldiers mass grave, German war prisoners concentration camp in Deblin, German-occupied Poland.jpg
A mass grave of Soviet prisoners of war killed by Germans in Stalag 307, Deblin, German-occupied Poland

War crimes also included deliberate attacks on citizens and property of neutral states, such as the Japanese attack on Pearl Harbor. As the attack on Pearl Harbor happened while the U.S. and Japan were at peace and without a just cause for self-defense, the attack was declared by the Tokyo Trials to go beyond justification of military necessity and therefore constituted a war crime. [39] [40] [41]

War crimes are significant in international humanitarian law [42] 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. Crimes against peace include 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 being 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"), [43] 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. [44] In regard to the strategic bombing during World War II, there was no international treaty or instrument protecting a civilian population specifically from attack by aircraft, [45] therefore the aerial attacks on civilians were not officially war crimes. 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. [46]

Controversy arose 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 were then used for forced labor such as clearing minefields. [47] 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. [47] 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. [48] [49]

United Nations

The United Nations defines war crimes as described in Article 8 of the Rome statute, the treaty that established the International Criminal Court: [50] [51]

  1. 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:
    1. Willful killing
    2. Torture or inhuman treatment, including biological experiments
    3. Willfully causing great suffering, or serious injury to body or health
    4. Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly
    5. Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power
    6. Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial
    7. Unlawful deportation or transfer or unlawful confinement
    8. Taking of hostages
  2. Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law...
  3. 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... [a]
  4. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law... [b]
  1. ↑ 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
  2. ↑ 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

Legality of civilian casualties

Under the law of armed conflict (LOAC), the death of non-combatants is not necessarily a violation; there are many things to take into account. Civilians cannot be made the object of an attack, but the death/injury of civilians while conducting an attack on a military objective are governed under principles such as of proportionality and military necessity and can be permissible. Military necessity "permits the destruction of life of ... persons whose destruction is incidentally unavoidable by the armed conflicts of the war; ... it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war." [52]

For example, conducting an operation on an ammunition depot or a terrorist training camp would not be prohibited because a farmer is plowing a field in the area; the farmer is not the object of attack and the operations would adhere to proportionality and military necessity. On the other hand, an extraordinary military advantage would be necessary to justify an operation posing risks of collateral death or injury to thousands of civilians. In "grayer" cases the legal question of whether the expected incidental harm is excessive may be very subjective. For this reason, States have chosen to apply a "clearly excessive" standard for determining whether a criminal violation has occurred. [53]

When there is no justification for military action, such as civilians being made the object of attack, a proportionality analysis is unnecessary to conclude that the attack is unlawful.

International Criminal Tribunal for the former Yugoslavia

For aerial strikes, pilots generally have to rely on information supplied by external sources (headquarters, ground troops) that a specific position is in fact a military target. In the case of former Yugoslavia, NATO pilots hit a civilian object (the Chinese embassy in Belgrade) that was of no military significance, but the pilots had no idea of determining it aside from their orders. The committee ruled that "the aircrew involved in the attack should not be assigned any responsibility for the fact they were given the wrong target and that it is inappropriate to attempt to assign criminal responsibility for the incident to senior leaders because they were provided with wrong information by officials of another agency". [54] The report also notes that "Much of the material submitted to the OTP consisted of reports that civilians had been killed, often inviting the conclusion to be drawn that crimes had therefore been committed. Collateral casualties to civilians and collateral damage to civilian objects can occur for a variety of reasons." [54]

Rendulic Rule

The Rendulic Rule is a standard by which commanders are judged.

German General Lothar Rendulic was charged for ordering extensive destruction of civilian buildings and lands while retreating from a suspected enemy attack in what is called scorched earth policy for the military purpose of denying the use of ground for the enemy. The German troops retreating from Finnish Lapland believed Finland would be occupied by Soviet troops and destroyed many settlements while retreating to Norway under the command of Rendulic. He overestimated the perceived risk but argued that Hague IV authorized the destruction because it was necessary to war. He was acquitted of that charge.

Under the "Rendulic Rule" persons must assess the military necessity of an action based on the information available to them at that time; they cannot be judged based on information that subsequently comes to light. [53]

See also

Country listings

Miscellaneous

Related Research Articles

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  34. ↑ Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflict, International Committee of the Red Cross, Geneva, Switzerland.(Protocol I) Archived December 10, 2008, at the Wayback Machine
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  36. ↑ Smith, S; Devine, M; Taddeo, J; McAlister, VC (2017). "Injury profile suffered by targets of antipersonnel improvised explosive devices: prospective cohort study". BMJ Open. 7 (7): e014697. doi:10.1136/bmjopen-2016-014697. PMC   5691184 . PMID   28835410.
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  38. ↑ Kevin Sieff (March 21, 2016). "In historic ruling, international court cites rape in war crimes conviction of ex-Congo official". The Washington Post . Archived from the original on November 10, 2021. Retrieved March 22, 2016.
  39. ↑ Geoff Gilbert (September 30, 2006). Responding to International Crime (International Studies in Human Rights). Martinus Nijhoff Publishers. p. 358. ISBN   978-90-04-15276-2.
  40. ↑ Yuma Totani (April 1, 2009). The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II. Harvard University Asia Center. p. 57.
  41. ↑ Stephen C. McCaffrey (September 22, 2004). Understanding International Law. AuthorHouse. pp. 210–229.
  42. ↑ "The Program for Humanitarian Policy and Conflict Research, "Brief Primer on IHL"". Archived from the original on April 19, 2010.
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  44. ↑ "The Atomic Bombing, The Tokyo War Crimes Tribunal and the Shimoda Case: Lessons for Anti-Nuclear Legal Movements by Yuki Tanaka and Richard Falk". Wagingpeace.org. Archived from the original on March 18, 2012. Retrieved May 2, 2012.
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  47. 1 2 S. P. MacKenzie "The Treatment of Prisoners of War in World War II" The Journal of Modern History, Vol. 66, No. 3. (Sep. 1994), pp. 487–520.
  48. ↑ ICRC Commentaries on the Convention (III) relative to the Treatment of Prisoners of War Archived April 4, 2013, at the Wayback Machine Article 5 Archived October 23, 2013, at the Wayback Machine "One category of military personnel which was refused the advantages of the Convention in the course of the Second World War comprised German and Japanese troops who fell into enemy hands on the capitulation of their countries in 1945 (6). The German capitulation was both political, involving the dissolution of the Government, and military, whereas the Japanese capitulation was the only military. Moreover, the situation was different since Germany was a party to the 1929 Convention and Japan was not. Nevertheless, the German and Japanese troops were considered as surrendered enemy personnel and were deprived of the protection provided by the 1929 Convention relative to the Treatment of Prisoners of War."
  49. ↑ ICRC Commentaries on the Convention (III) relative to the Treatment of Prisoners of War Archived April 4, 2013, at the Wayback Machine Article 5 Archived October 23, 2013, at the Wayback Machine "Under the present provision, the Convention applies to persons who "fall into the power" of the enemy. This term is also used in the opening sentence of Article 4, replacing the expression "captured" which was used in the 1929 Convention (Article 1). It indicates clearly that the treatment laid down by the Convention applies not only to military personnel taken prisoner in the course of fighting but also to those who fall into the hands of the adversary following surrender or mass capitulation."
  50. ↑ "United Nations Office on Genocide Prevention and the Responsibility to Protect". UN.org. Archived from the original on November 23, 2020. Retrieved October 18, 2021.
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  53. 1 2 Department of Defense law of war manual. United States Department of Defense Office of General Counsel. OCLC   953877027.
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