War crimes are serious violations of the laws applicable in armed conflict (also known as international humanitarian law) giving rise to individual criminal responsibility. Examples of such conduct include "murder, the ill-treatment or deportation of civilian residents of an occupied territory to slave labor camps", "the murder or ill-treatment of prisoners of war", the killing of prisoners, "the wanton destruction of cities, towns and villages, and any devastation not justified by military, or civilian necessity".[1]
Similar concepts, such as perfidy, have existed for many centuries as customs between civilized countries, but these customs were first codified as international law in the Hague Conventions of 1899 and 1907. The modern concept 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. (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.
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"[2] and over the last century many other treaties have introduced positive laws that place constraints on belligerents (see International treaties on the laws of war). Some of the provisions, such as those in the Hague, the Geneva, and Genocide Conventions, are considered to be part of customary international law, and are binding on all.[3][4] Others are only binding on individuals if the belligerent power to which they belong is a party to the treaty which introduced the constraint.
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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.[6][7] 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".
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 First and Second Geneva Conventions (1864 and 1909), among the first formal statements of the laws of war and war crimes in the nascent body of secular international law.
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.
All conventions were revised and expanded in 1949:
Two Additional Protocols were adopted in 1977, completing and updating the Geneva Conventions:
- First Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field" (first adopted in 1864, last revision in 1949).
- Second Geneva Convention "for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea" (first adopted in 1906).
- Third Geneva Convention "relative to the Treatment of Prisoners of War" (first adopted in 1929, last revision in 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).
- 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."
Several German military commanders of the First World War were tried in 1921 by the German Supreme Court for war crimes.
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.
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.
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.[8]
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".[9]
To date, the present and former heads of state and heads of government that have been charged with war crimes include:
War Crimes are those serious violations of the rules of customary and treaty law concerning international humanitarian law that have become accepted as criminal offences for which there is individual responsibility.[12] 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 of war to mount an attack. Attacking enemy troops while they are being deployed by way of a parachute is not a war crime.[13] However, Protocol I, Article 42 of the Geneva Conventions explicitly forbids attacking parachutists who eject from damaged airplanes, and surrendering parachutists once landed.[14] War crimes 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.
War crimes are significant in international humanitarian law[15] 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"),[16] as some controversies have not been ruled as war crimes. Some examples include the Allies' destruction of civilian Axis targets during World War II, such as the firebombing of the German city of Dresden and the use of atomic bombs on Hiroshima and Nagasaki;[17] the use of Agent Orange against civilian targets in the Vietnam War; the mass killing of Biharies by Kader Siddique and Mukti Bahini[18] before or after victory of Bangladesh Liberation War in Bangladesh between 1971 and 1972; and the Indonesian occupation of East Timor between 1976 and 1999.
Another example is the Allied re-designation of German POWs (under the protection of the Geneva conventions) into Disarmed Enemy Forces (allegedly unprotected by the Geneva conventions), many of which then were used for forced labor such as clearing minefields. By December 1945 it was estimated by French authorities that 2,000 German prisoners were being killed or maimed each month in mine-clearing accidents.[19]