A lecture of war crimes under international humanitarian law and human rights law

1. War Crimes
Week 5
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2. INTRODUCING TODAY’S
SESSION
• War crimes and their relationship with IHL.
• We will consider in turn:
– The concepts of war crimes and IHL.
– The legal tests developed in ICL for determining
whether a crime has occurred.
• Presentation on the Destruction of Cultural Heritage by Dr
Charlotte Woodhead
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3. War Crimes
■War crimes are “grave” or “serious” violations of
international humanitarian law, the branch of international
law dealing with the conduct of armed conflict whether
international or non-international, such as civil wars or large-
scale and protracted armed clashed within a State for which
individuals can be held responsible.
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4. War Crimes
■ See Article 8 of the ICC Statute.
■ Please note: for each crime, please also check the
Elements of Crimes.
■ The basis for Article 8 is customary and treaty law applicable to
armed conflict.
■ See the 4 Geneva Conventions
– Convention I protects wounded and sick in land warfare;
– Convention II protects wounded, sick and shipwrecked in
sea warfare;
– Convention III protects prisoners of war;
– Convention IV protects civilians;
– Complemented by 2 Additional Protocols in 1977 (API and
APII).
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5. IHL v. War Crimes
■Whereas IHL is addressed to governments and other parties
to a conflict and gives the standard expected in an armed
conflict, war crimes covers the category of “serious”
violations of IHL addressed to individuals and entails
individual criminal responsibility of the perpetrator.
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6. Elements of War Crimes
■ Existence of an Armed Conflict:
See Haradinaj, ICTY, para 37
Carla del Ponte: "one indictment by the end of the year [2004]
against a high-level commander".
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7. Elements of War Crimes
– § 37:
– “An armed conflict exists whenever there is a resort to
armed force between States or protracted armed violence
between governmental authorities and organised armed
groups of between such groups within a State. International
humanitarian law applies from the initiation of such armed
conflict and extends beyond the cessation of hostilities until
a general conclusion of peace is reached; or, in the case of
internal conflicts, a peaceful settlement is achieved.”
– “This test serves to distinguish non-international armed
conflict from banditry, riots, isolated acts of terrorism, or
similar situations. The Trial Chamber must determine
whether (i) the armed violence is protracted and (ii) the
parties to the conflict are organised”.
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8. Elements of War Crimes
■ War Crimes v. Domestic Offences:
■ In Kunarac, extracts paras. 58 & 59 the ICTY held that:
■ “What ultimately distinguishes a war crime from a purely domestic
offence is that a war crime is shaped by or dependent upon the
environment – the armed conflict - in which it is committed. It need
not to have been planned or supported by some form of policy. The
armed conflict need not have been causal to the commission of the
crime, but the existence of an armed conflict must, at a minimum,
have played a substantial part in the perpetrator’s ability to commit
it, his decision to commit it, the manner in which it was committed
or the purpose for which it was committed (…)
■ In determining whether or not the act in question is sufficiently related
to the armed conflict, the Trial Chamber may take into account, inter
alia, the following factors: the fact that the perpetrator is a
combatant; the fact that the victim is a non-combatant; the fact
that the victim is a member of the opposing party; the fact that the
act may be said to serve the ultimate goal of a military campaign;
and the fact that the crime is committed as part of or in the context
of the perpetrators official duties (…)”.
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9. Elements of War Crimes
■ Armed conflict need not be of an international nature:
– Rwanda
– Confirmed by
■ the ICTY in the Tadić case (2 October 1995)
■ the ICC Statute
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10. Definition
■IHL does permit attacks on military objectives and this
might involve incidental civilian losses as long as they are not
disproportionate to the anticipated military advantage
■We will briefly examine the:
– Means and Methods of Warfare
– Protection of Civilians
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11. Guernica
Pablo Picasso, 1937
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12. Means and Methods of
Warfare
• Attacks on military objectives are
permitted.
• However, the weapons used must not be
meant to cause unnecessary suffering and
destruction.
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13. Protection of Civilians
– Protected people: people and their property that have no active
part in the hostilities.
– Article 51(2) and Article 85 of API
■ The ICTY in Galić: He “conducted a coordinated and protracted
campaign of shelling and sniper attacks upon the civilian population
of Sarajevo, killing and wounding a large number of civilians of all
ages and both sexes, such attacks by their nature involving the
deliberate targeting of civilians with direct fire weapons”.
■ The ICTY clarified that an attack on civilians is constituted of acts
of violence directed against the civilian population or individual
civilians not taking direct part in hostilities causing death or
serious injury to body or health within the civilian population AND
the offender wilfully made the civilian population or individual
civilians not taking direct part in hostilities the object of those acts
of violence.
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14. 14
Is the Use of Chemical
Weapons a War Crime?

15. Protection of Civilians
and Collateral Damage
■Limited incidental or collateral damage is acceptable, as
long as suffering is kept to a minimum.
– Article 52(5)(b) of API prohibits ‘an attack which
may be expected to cause incidental loss of civilian
life, injury to civilians, damage to civilian objects or
a combination thereof, which would be excessive in
relation to the concrete and direct military
advantage anticipated”.
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16. – Syria is not a state party: UNCS
resolution or proprio motu
– War crime of intentionally
directing attacks against a
civilian population
– ICC Statute: no explicit
mention, but
■ International conflicts: Art.
8(2)(b)xvii on “poison or
poisoned weapons”
■ Non-international conficts: Art.
8(2)(e)(xiii) & (xiv)
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17. Summary
■Acts committed during armed conflict must comply with the
principles of:
– Proportionality
– Necessity
– Self-Defence
– With a view to safeguarding the civilian population
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18. War Crimes
■ War crimes are ‘grave’ or ‘serious’ violations of IHL for
which the perpetrator should be held responsible before a
court.
■ The regular prosecution of war crimes could have an
important preventive, deterrent and expressive effect as
it:
– Clarifies that IHL is law;
– Has a stigmatising effect in the eyes of public opinion;
– Places responsibility and punishment on the
individual.
■ Prosecutorial discretion: most large-scale and
representative crimes, see: OTP Letter re: Iraq, 9
February 2006.
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19. Filmography
• Afghan Massacre: The Convoy of Death (Afghanistan,
Documentary 2003);
• The Battle of Algiers (Algeria, 1967);
• The Official Story (Argentina, 1985);
• No Man’s Land (Balkans, 2001)
• Welcome to Sarajevo (Bosnia, 1997)
Child Soldiers:
• Johnny Mad Dog (2008)
• War Witch (2012)
• Ezra (2007)
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