Abstract
This article
explores the multifaceted nature of war crimes through contemporary and
historical lenses, highlighting evolving legal frameworks and accountability
mechanisms. It begins with the Israel-Hamas conflict and extends to the
Russian-Ukrainian conflict, detailing atrocities and violations of
International Humanitarian Law by both sides. The historical development of war
crimes is traced from early definitions and the Leipzig Trials post-World War I
to the expanded scope and individual accountability established by the
Nuremberg and Tokyo Trials after World War II. Key legal instruments such as
the Geneva Conventions of 1949 and the establishment of the International
Criminal Tribunals for the former Yugoslavia and Rwanda are discussed,
particularly their recognition of sexual violence as a war crime. The article
analyses the Rome Statute of the International Criminal Court, its role in
modern prosecutions, and challenges such as jurisdiction and the complementary
role of national courts. It also examines command responsibility, emphasising
the obligation of leaders to prevent and address war crimes by subordinates.
The conclusion reflects on the evolving definitions of war crimes and the
international legal framework’s efforts to enforce accountability, stressing
the importance of integrating these standards into national legal systems for
comprehensive justice.
Introduction
In the ongoing
Israel-Hamas conflict, war crimes have been committed by all parties.1 Hamas gunmen killed 1,200 people and captured
253 hostages, mostly civilians, in an attack on Israel in Oct 2023. Palestinian
armed groups launching indiscriminate projectiles across Southern Israel and
the holding of hostages also violated International Humanitarian Law (IHL).2 The attack
sparked an Israeli offensive in Hamas-run Gaza, in which more than 34,000
people have been killed during the offensive. Allegedly, weapons supplied by
the United States (US) to Israel are being used in violation of the IHL.3 A United Nations report has found continued
evidence of war crimes and human rights violations committed by Russian
authorities in Ukraine, including wilful killing, torture, rape and other
sexual violence and the deportation of children. There were three occasions
when Russian authorities transferred Ukrainian unaccompanied children from one
area, they controlled in Ukraine to another or to the Russian Federation. Such
transfers occurred in violation of the IHL and qualified as unlawful transfers
or deportations, which is a war crime.4 There are also reports of systematic war
crimes committed by the Ukrainian armed and security forces.5
War
Crimes
The
term ‘War Crime’ has been difficult to define with precision. Put simply, a war
crime is a violation of the law of war. However, all violations of the law of
war do not qualify as war crimes. In 1872, war crime was used for the first
time by German Johann Casper; who thought of it as military forces acting
without orders during wartime, that was a war crime. The use of war crime has
evolved since 1906, when Oppenheim coined the phrase in his influential
treatise International Law.6 However, the first systematic attempt to
define a broad range of crimes during the Civil War was made on the
‘Instructions for the Government of Armies of the US in the Field’ (Lieber
Code), drafted by Francis Lieber, which was issued by US President Abraham
Lincoln during the American Civil War in 1863.7
The
Leipzig Trials
After
the conclusion of World War 1 (WW I), Allied leaders developed a concept to try
enemy leaders criminally for the international law violations they committed
during the war. Articles 227 to 230 of the Treaty of Versailles stipulated the
arrest and trial of German officials for ‘Supreme offence against international
morality and the sanctity of the treaty’ and ‘accused of having committed acts
in violation of the laws and customs of war’. The legacy of the Leipzig trial
is that it was the first attempt to develop a comprehensive approach and system
for prosecuting international law violations in wartime. These prosecutions
resulted in few convictions, with most sentences ranging from a few months to
four years in prison.
The
Nuremberg and Tokyo Trials
The
next major attempt to prosecute war criminals occurred in Europe and Asia after
World War 2 (WW II).8 At the conclusion of the war, the US, the
United Kingdom, the Soviet Union, and France signed the London Agreement, which
provided for an international military tribunal to try major Axis war criminals
whose offences did not take place in specific geographic locations. This
agreement was supported by 19 other governments, establishing the Nuremberg
Tribunal. The charter listed three categories of crime: crimes against peace,
which involved the preparation and initiation of a war of aggression, war
crimes, and crimes against humanity. The war crimes included murder, rape,
refusal of quarter, torture and ill-treatment, wanton devastation or
destruction of property, attack on hospital ships, pillage and plunder, and
deportation, etc. Nearly every act on this list was charged as a war crime
against Japanese and German defendants after WW II. The trial of Japanese
General Yamashita affirmed the principle of individual accountability for
crimes against international law. The gist of the charge was that the
petitioner had failed in his duty as an army commander to control the
operations of his troops, ‘Permitting them to commit’ specified atrocities
against the civilian population and prisoners of war. Yamashita was found
guilty, and sentenced to death.9
The
Geneva Conventions of 1949
The
four Geneva Conventions, adopted in 1949, provided for the protection of
wounded, sick, and shipwrecked military personnel, prisoners of war, and
civilians. The Geneva Conventions contain stringent rules to deal with what are
known as ‘Grave Breaches’. Those responsible for grave breaches must be sought,
tried or extradited, whatever nationality they may hold. Grave breaches
specified in the four 1949 Geneva Conventions are wilful killing; torture or
inhuman treatment; biological experiments; wilfully causing great suffering;
causing serious injury to body or health; extensive destruction and
appropriation of property, not justified by military necessity and carried out
unlawfully and wantonly; compelling a prisoner of war/protected person to serve
in the forces of hostile power, or wilfully depriving a prisoner of war of the
right of fair trial. A number of grave breaches have been specified in Articles
11 and 85 of the 1977 Additional Protocol I to the Geneva Conventions. In
addition, the Hague Conventions of 1899 and 1907, deal with the means and
methods of war and forbid the use of expanding bullets, poison or poisonous
weapons, the use of weapons calculated to cause unnecessary suffering, pillage,
and bombardment of undefended buildings, villages, or towns, among other
limitations. While these conventions themselves did not identify the above acts
as war crimes they did create a penal system through which grave breaches could
be prosecuted. States party to the conventions were obliged to adopt domestic
laws criminalising the ordering or perpetration of such acts.
International
Criminal Tribunal for the former Yugoslavia (ICTY) and the International
Criminal Tribunal for Rwanda (ICTR)
More
recently, definitions of war crimes have been codified in international
statutes, such as the war crimes in the ICTY,10 and ICTR, and the Rome Statute of
the International Criminal Court (ICC). The governing statutes of the ICTY and
ICTR defined war crimes broadly. The ICTY was given jurisdiction over four
categories of crime: grave breaches of the Geneva Conventions, violations of
the laws or customs of war, genocide, and crimes against humanity. In both
tribunals rape, murder, torture, deportation, and enslavement were subject to
prosecution. The ICTY and ICTR were the first international bodies to recognise
sexual violence formally as a war crime.
The
Rome Statute of the ICC
The
Article 8 of the Rome Statute categorises war crimes as follows:
n Grave breaches of the 1949 Geneva
Conventions, related to international armed conflict.
n Other serious violations of the laws and
customs applicable in international armed conflict.
n Serious violations of Article 3 common to
the four 1949 Geneva Conventions, related to Non-International Armed Conflicts
(NIAC).
n Other serious violations of the laws and
customs applicable in NIAC.11
What constitutes a war crime may differ,
depending on whether an armed conflict is international or non-international.
Therefore, war crimes are those violations of IHL (treaty or customary law)
that incur individual criminal responsibility under international law. War
crimes contain two main elements: a contextual element: the conduct took place
in the context of and was associated with an international/non-international
armed conflict; and a mental element: intent and knowledge both with regards to
the individual act and the contextual element. From a more substantive
perspective, war crimes could be divided into: 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. Some examples of
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.
War
Crime Trials under ICC
The
ICC passed its first judgment in 2012 and since then has prosecuted several
individuals who were accused of war crimes. These war crimes include: enlisting
and conscripting children under the age of fifteen and using them to
participate actively in hostilities; murder, attacking a civilian population,
destruction of property and pillaging; abducting boys and girls under the age
of 15 and forcing them to fight in a war; and intentionally directing attacks
against religious and historic buildings. A few cases are still under progress
at the ICC.
On 17 Mar 2023, ICC Pre-trial Chamber II
issued warrants of arrest for Russian President Putin and Maria Lvova-Belova,
Commissioner for Children’s Rights in the Office of the President of the
Russian Federation. This was based on the applications by the ICC Prosecutor,
Kareem Khan KC, on 22 Feb 2023. The Pre-trial Chamber concluded that there are
reasonable grounds to believe that each bears responsibility for the war crime
of unlawful deportation of population (children) and unlawful transfer of
population (children) from occupied areas of Ukraine to the Russian Federation,
to the prejudice of Ukrainian children.
Under Article 8(2)(a) of the Rome
Statute of ICC, conscripting or enlisting children under the age of 15 years
into armed forces or groups or using them to participate actively in
hostilities; or ordering the displacement of the civilian population for
reasons related to the conflict, unless the security of the civilians involved
or imperative military reasons so demand, is a war crime. The head of a state
can be prosecuted for such war crimes by the ICC.12 Russia being a permanent member of the
Security Council; the possibility of Putin’s trial by the ICC for war crimes is
nearly impossible.
Indian
Military Law
The
ICC was established as a court of last resort to prosecute the most heinous
offences in cases where national courts fail to act. The jurisdiction of the
ICC is complementary to the national courts. In the case of India and a number
of other states like the US,13 Israel, and China, the domestic laws are
considered adequate to prosecute a national accused of war crime during an
armed conflict.14 A number of European states have updated their
domestic criminal codes to include war crimes as contained in the Rome Statute.15 The military legal system of India is not
compatible with the provisions of the Rome Statute. The Bharatiya Nyaya
Sanhita, 2023 (New penal code of the country), defines certain
crimes and provides for universal jurisdiction over such crimes.16 Military personnel accused of breaches in the
nature of torture, inhumane and degrading treatment, destruction of property,
destruction of places of worship, etc., can be tried under different provisions
of the Army Act. For serious criminal offences like murder, rape, etc.,
military accused can be tried under Section 69 of the Army Act. If one the
claim is that the armed forces support the rule of law, the Indian military
manuals should ensure compatibility with the Rome Statute in relation to
crimes, the rights of an accused during trial, and the internationally accepted
standards of command responsibility.
Command
Responsibility for Subordinates’ War Crimes
The
war crimes trials held immediately after the conclusion of WW II marked a clear
recognition by the international community that all members of the chain of
command who participate or acquiesce in war crimes must bear individual
criminal responsibility.17 The German and Japanese commanders were tried
for war crimes in international tribunals at Nuremberg and Tokyo. Some of these
commanders were tried for war crimes they ordered their troops to commit, but
other commanders were tried for war crimes they merely failed to prevent. The
Rome Statute provides that a military commander can be held liable for the war
crimes or other crimes of his subordinates, over whom he has effective command
and control, even though he has not directly participated in the crime or
encouraged it in any shape or form.18 A
military commander has a positive duty to take all necessary measures to stop
or prevent the unlawful conduct, and if he does not, he is deemed to have aided
and abetted the commission of the offence and is as responsible for the crime
as those who commit it.
In modern times, command is not
restricted to military commanders. Command can be both military and civil, and
includes the heads of state, high-ranking government officials, civilian
ministers, and joint chiefs of staff. The determining factor is not rank but
subordination. The aim of this provision is to encourage commanders and
superiors to effectively prevent the perpetration of crimes by their forces.
Conclusion
Stories
of war crimes have become an almost daily occurrence in the ongoing armed
conflicts. The most common approach to defining a war crime has been to
identify it as a violation of the IHL that has been ‘Criminalised’. Treaties,
including the Hague and Geneva Conventions, did not establish international war
crimes in their present iteration. The rules governing the conduct of war have
existed since long, the modern concept of war crime and the use of
international courts to try war criminals is a modern practice. The shift in
the understanding of war crime can be traced to changes that took place in the
period between WW I and WW II. The 1949 Geneva Conventions offered an
opportunity to clarify the scope of war crimes. They did not use the term
international war crimes and obligated state parties to enact any legislation
necessary to provide effective penal sanctions for persons committing, or
ordering to be committed, any of the grave breaches of the convention. Finally,
the Rome Statute envisioned a universal, and precise rendering of war crimes,
integrated into the criminal law of national legal systems.
Today, the reliance on ‘Criminalisation’
as a defining characteristic of a war crime is widespread. Thus, war crimes are
violations of the IHL that are criminalised under international law. The states
have an obligation to search for persons alleged to have committed, or to have
ordered to be committed grave breaches of the convention, regardless of their
nationality. A military commander can be held liable for the war crimes
committed by his subordinates, even though he has not directly participated in
the crime.
Endnotes
1 Gabrielle Tétrault-Farber, UN rights chief,
Reuters, 29 Feb 2024.
2 IHL is a combination of international treaties
and customary international law. The Hague Convention of 1907 and various
weapon ban treaties generally prescribes rules of conduct for armed forces,
while the Geneva Conventions of 1949 and Additional Protocol I of 1977 address
the rights of protected persons, such as civilians and prisoners of war, in an
international armed conflict. Non-international armed conflicts are governed by
Article 3 Common to the Geneva Conventions and the Additional Protocol II of
1977.
3 Pamuk Humeyra, Exclusive: Some US officials
say in an internal memo Israel may be violating international law in Gaza,
Reuters, 28 Apr 2024.
4 The collected evidence shows that Russian
authorities have committed the war crimes of wilful killing, torture, rape and
other sexual violence, and the deportation of children to the Russian
Federation. The Commission’s investigations confirmed its previous finding that
Russian authorities have used torture in a widespread and systematic way in
various types of detention facilities which they maintained. Independent
International Commission of Inquiry on Ukraine, UN HRC report A/78/540 dated 19
Oct 2023. Available at:
https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/coiukraine/A-78-540-AEV.pdf.
5 As reported, the Russian prisoners of war were
electrocuted, beaten cruelly and for multiple days in a row with different
objects (iron bars, baseball bats, sticks, rifle butts, bayonet knives, rubber
batons). Techniques widely used by the Ukrainian armed forces and security
forces include waterboarding, strangling with a ‘Banderist garrotte’ and other
types of strangling. Other torture methods used by the Ukrainian armed forces
and security forces include bone-crashing, stabbing and cutting with a knife,
branding with red-hot objects, shooting different body parts with small arms.
The prisoners taken captive by the Ukrainian armed forces and security forces
were kept for days at freezing temperatures, with no access to food or medical
assistance, and are often forced to take psychotropic substances that cause
agony. An absolute majority of prisoners are put through mock firing squads and
suffer death and rape threats to their families. Evidence of Ukrainian War
Crimes in Donbass, 16 Mar 2023, available at:
https://www.osce.org/files/f/documents/b/2/540581.pdf.
6 Oppenheim defined four different kinds of war
crime: (i) violations of recognized rules of warfare by enemy armed forces, if
carried out without orders; (ii) hostilities committed by individuals not
members of the enemy armed forces; (iii) espionage and war treason; and (iv)
marauding acts. Oppenheim L., International Law: A Treatise (Longmans,
Green & Co. 1906), p. 263-270.
7 For example, the Lieber Code held that it was
a “serious breach of the law of war to force the subjects of the enemy into
service for the victorious government” and prohibited “wanton violence
committed against persons in the invaded country,” including rape, maiming, and
murder. Punishment for these crimes was ‘death’.
8 Throughout the war, the Allies had cited
atrocities committed by the Nazi regime of Adolf Hitler and announced their
intention to punish those guilty of war crimes. The Moscow Declaration of 1943,
and the Potsdam Declaration of 1945, issued by the US, the UK, and China (and
later adhered to by the Soviet Union), addressed the issue of punishing war crimes
committed by the German and Japanese governments, respectively.
9 From their outset, the war crimes trials after
WWII were dismissed by critics merely as “victor’s justice,” because: (i) Only
individuals from defeated countries were prosecuted, and (ii) The defendants
were charged with acts that allegedly had not been criminal when committed. The
main criticism against these trials was that the Allies were engaging in
victor’s justice.
10 The armed conflict in the former Yugoslavia
were marked by many war crimes, including ethnic cleansing, genocide and rape.
It resulted in the death of 140,000 people. Serb forces deported about 100,000
Croats in Croatia in 1991–92 and at least 700,000 Albanians in Kosovo in 1999.
In addition, the Serb forces drove at least 700,000 Bosnian Muslims from the
area of Bosnia under their control. It has been estimated that during the
conflict in Kosovo as many as 20,000 Kosovo women were raped. Not only women
were victims of sexual violence during this conflict, men were subjected to
sexual violence as well. Many of the Serbs acted on official orders to rape
women as sexual violence was strategically used as an instrument of war and a
weapon of terror during the conflict.
11 Eleven crimes constitute grave breaches of the
Geneva Conventions and apply only to international armed conflicts: willful
killing; torture; Inhumane treatment; biological experiments; willfully causing
great suffering; destruction and appropriation of property; compelling service
in hostile forces; denying a fair trial; unlawful deportation and transfer;
unlawful confinement; and taking hostages. Seven crimes constitute serious
violations of article 3 common to the Geneva Conventions and apply only to
non-international armed conflicts: murder; mutilation; cruel treatment;
torture; outrages upon personal dignity; taking hostages; and sentencing or
execution without due process. Another 56 crimes defined by article 8: 35 apply
to international armed conflicts and 21 to non-international armed conflicts.
Such crimes include attacking civilians or civilian objects, attacking
peacekeepers, causing excessive incidental death or damage, transferring
populations into occupied territories, treacherously killing or wounding,
denying quarter, pillaging, employing poison, using expanding bullets, rape and
other forms of sexual violence, and conscripting or using child soldiers.
12 Article 27 of the Rome Statute provides
jurisdiction to ICC over heads of State: (1) This Statute shall apply equally
to all persons without any distinction based on official capacity. In
particular, official capacity as a Head of State or Government, a member of a
Government or parliament, an elected representative or a government official
shall in no case exempt a person from criminal responsibility under this
Statute, nor shall it, in and of itself, constitute a ground for reduction of
sentence. (2) Immunities or special procedural rules which may attach to the
official capacity of a person, whether under national or international law,
shall not bar the Court from exercising its jurisdiction over such a person.
13 The 1996 War Crimes Act sets forth conduct the
United States punishes as war crimes. Previously, only when US nationals were
involved as either perpetrator or victim would the conduct potentially fall
under these provisions. Congress amended the provision in January 2023 to
provide courts’ jurisdiction over foreign nationals who are found in the United
States and suspected of having committed war crimes anywhere.
14 For instance, in May 2022, a court in Ukraine
sentenced a 21-year-old Russian soldier, Vadim Shishimarin, to life
imprisonment for the war crime of premeditated murder of a civilian,
62-years-old Oleksandr Shelipov. According to the prosecution, Vadim, a tank
commander, has captured and shot a man walking his bicycle near his home in the
Sumy region because he had a cell phone to his ear and could alert authorities
to the Russian presence. In announcing the original sentence, the Judge
pronounced Sergeant Vadim guilty of violating the laws and customs of war and
of committing premeditated murder. The Kyiv Court of Appeals reduced his
sentence to 15 years. The case was the first successful conviction of a Russian
soldier accused of a war crime. Dan Bilefsky, A Ukrainian appeals court reduces
the life sentence of a Russian soldier tried for war crimes, The New York
Times, 29 July 2022.
15 Hathaway Oona A., Paul K. Strauch, Beatrice A.
Walton, and Zoe A. Y. Weinberg, What is a War Crime? The Yale Journal of
International Law, Vol.44, No.1, 2019, pp. 53-113.
16 The Bharatiya Nyaya Sanhita, 2023 (earlier the
Indian Penal Code, 1860), contains few provisions under Chapter VI, for which a
military person can be prosecuted under Section 69 of the Army Act, 1950.
17 Mitchell Andrew, Failure to Halt, Prevent or
Punish: The Doctrine of Command Responsibility for War Crimes, Sydney Law
Review, 2000, Vol.22. pp. 381-410.
18 Article 28 of the Rome Statute dealing with
the “Responsibility of commanders and other superiors”, provides: In addition
to other grounds of criminal responsibility under this Statute for crimes
within the jurisdiction of the Court: (a) A military commander or person
effectively acting as a military commander shall be criminally responsible for
crimes within the jurisdiction of the Court committed by forces under his or
her effective command and control, or effective authority and control as the
case may be, as a result of his or her failure to exercise control properly
over such forces, where: (i) That military commander or person either knew or,
owing to the circumstances at the time, should have known that the forces were
committing or about to commit such crimes; and (ii) That military commander or
person failed to take all necessary and reasonable measures within his or her
power to prevent or repress their commission or to submit the matter to the
competent authorities for investigation and prosecution.
@Wing
Commander (Dr) UC Jha (Retd) took premature retirement form the
Indian Air Force after completing 23 years of service in 2001. He has completed
PhD in ‘Law and Governance’ from Jawaharlal Nehru University, New Delhi in
2007. He is an independent researcher in the fields of International
Humanitarian Law (IHL), Military Law, and Human Rights Law. Wg Cdr Jha has authored
34 books and contributed more than 150 articles on subjects relating to
military legal system, International Humanitarian Law and human rights in
various international and Indian journals and newspapers. He has been teaching
IHL at Indian Society for International Law for more than 15 years.
Journal of the United Service Institution
of India, Vol. CLIV, No. 636,
April-June 2024.