War crime
A war crime is a serious violation of the laws and customs applicable in armed conflict, known as international humanitarian law and the laws of war, which gives rise to criminal responsibility under international law. Examples of actions committed by combatants in the conduct of war that can give rise to individual criminal responsibility include, but are not limited to: intentionally killing civilians, torture, taking hostages, unnecessarily destroying civilian property, deception by perfidy, wartime sexual violence, pillaging, the granting of no quarter despite surrender, the conscription of children in the military, ordering any attempt to commit mass killings, and flouting the requirements of distinction, proportionality and military necessity.
The formal concept of war crimes emerged from countries fighting and the codification of the customary international law that applied to warfare between sovereign states, such as the 1863 Lieber Code of the Union Army in the American Civil War and the Hague Conventions of 1899 and 1907 for international war. In the aftermath of the Second World War, the war crime trials of the leaders of the Axis powers established the Nuremberg principles, such as that international criminal law defines what is a war crime. In 1899, the Geneva Conventions legally defined new war crimes and established that states could exercise universal jurisdiction over war criminals. In the late 20th century and early 21st century, international courts extrapolated and defined additional categories of war crimes applicable to a civil war.
International humanitarian law
Definition
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.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. Attacking enemy troops while they are being deployed by way of a parachute is not a war crime. 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 forbids belligerents to punish enemy spies without previous trial.
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. 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 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.
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". 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.
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.
The legalities of war have sometimes been accused of containing favoritism toward the winners, 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, and the atomic bombings of Hiroshima and Nagasaki. 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; 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. The Japanese also did not face prosecution for the aerial attacks on crowded Chinese cities.
Controversy arose when the Allies re-designated German prisoners of war as Disarmed Enemy Forces, many of which were then 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.
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.Rome Statute
Article 8 of the Rome Statute of the International Criminal Court defines war crimes as:- 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:
- :
- Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law…
- 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…
- Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law…
Other Definitions
Nuremberg Trials
Article 6 of the Charter of the Nuremberg Tribunal defines war crimes as:- War crimes: Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
Legality of civilian casualties
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.
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.