Given the current geopolitical climate and the increasing reports of atrocities during armed conflicts, I’d like to delve deeper into the legal definition of war crimes.

What specific actions, behaviors, and violations of international humanitarian law, according to the Rome Statute of the International Criminal Court and other relevant treaties (like the Geneva Conventions), constitute a war crime? Please provide examples across different categories, such as:

• Grave breaches of the Geneva Conventions: What specific acts against protected persons (civilians, prisoners of war, the wounded and sick) fall under this definition?
• Attacks against civilians and civilian objects: What distinguishes a legitimate military target from a civilian object? What precautions must be taken to avoid civilian casualties? What constitutes a disproportionate attack?
• Use of prohibited weapons: Which weapons are explicitly banned, and what are the legal justifications for these bans?
• Crimes against humanity when committed in conjunction with armed conflict: How does the ICC differentiate between crimes against humanity and war crimes, particularly in the context of an armed conflict?
• Specific targeting of cultural property or religious sites: Under what circumstances does damage to such sites constitute a war crime?

Finally, what are the command responsibility implications related to war crimes? What level of knowledge or intent is required for a commander to be held accountable for war crimes committed by their subordinates?

Answer

A war crime is a violation of the laws of war, also known as international humanitarian law. These laws dictate acceptable conduct during armed conflict, seeking to minimize suffering and protect civilians, prisoners of war, and other non-combatants.

Core Elements Defining War Crimes:

• Nexus to Armed Conflict: The act must occur in the context of and be associated with an international armed conflict (between two or more states) or a non-international armed conflict (within a state between governmental forces and organized armed groups, or between such groups). A direct link between the act and the armed conflict must exist.

• Violation of International Humanitarian Law: The act must violate a specific rule of international humanitarian law established by treaty or customary international law.

• Awareness and Intent: The perpetrator must have knowledge of the factual circumstances that establish the offense (e.g., that the person they are attacking is a civilian). Furthermore, intent (mens rea) is usually a required element; the perpetrator must have acted intentionally or with sufficient recklessness.

Categories of War Crimes:

The Rome Statute of the International Criminal Court (ICC) provides a comprehensive list of war crimes, which is generally considered reflective of customary international law. These can be broadly categorized as follows:

1. Grave Breaches of the Geneva Conventions (Applicable in International Armed Conflicts): These are the most serious war crimes and include:

   • Willful Killing: Intentionally causing the death of a protected person.
   • Torture or Inhuman Treatment: Inflicting severe physical or mental pain or suffering.
   • Biological Experiments: Performing medical or scientific experiments on protected persons that are neither justified by medical necessity nor carried out in their best interest.
   • Willfully Causing Great Suffering or Serious Injury to Body or Health: Acts causing significant and lasting harm.
   • Extensive Destruction and Appropriation of Property, Not Justified by Military Necessity and Carried Out Unlawfully and Wantonly: Destroying or seizing property without a valid military reason.
   • Compelling a Prisoner of War or Civilian to Serve in the Forces of a Hostile Power: Forcing protected persons to fight against their own side.
   • Willfully Depriving a Prisoner of War or Civilian the Rights of Fair and Regular Trial: Denying due process to those entitled to it.
   • Unlawful Deportation or Transfer or Unlawful Confinement: Forcibly moving protected persons from their homes or detaining them illegally.
   • Taking of Hostages: Seizing and detaining persons to compel another party to act or refrain from acting.

2. Other Serious Violations of the Laws and Customs Applicable in International Armed Conflicts: This is a broader category that includes:

   • Attacking Civilians: Intentionally directing attacks against the civilian population or individual civilians not taking direct part in hostilities.
   • Attacking Civilian Objects: Intentionally directing attacks against civilian objects (e.g., homes, schools, hospitals) that are not military objectives.
   • Attacking Personnel or Objects Involved in Humanitarian Assistance or Peacekeeping Missions: Intentionally directing attacks against personnel, installations, material, units or vehicles involved in humanitarian assistance or peacekeeping missions in accordance with the Charter of the United Nations.
   • Attacks Causing Excessive Incidental Harm: Launching an attack knowing it will cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be clearly excessive in relation to the concrete and direct military advantage anticipated.
   • Attacking Defenseless Localities: Attacking undefended towns, villages, dwellings, or buildings.
   • Killing or Wounding a Combatant Who Has Surrendered: Attacking a person hors de combat (out of combat).
   • Misusing the Red Cross/Crescent Emblem: Making improper use of the distinctive emblems of the Red Cross/Red Crescent or other protective signs recognized by the Geneva Conventions.
   • Using Poison or Poisoned Weapons: Employing methods or means of warfare which are intended, or may be expected, to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate.
   • Using Prohibited Weapons: Employing weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such instruments are the subject of a comprehensive prohibition.
   • Using Human Shields: Utilizing the presence of civilians or other protected persons to render certain points, areas or military forces immune from military operations.
   • Starvation of Civilians as a Method of Warfare: Intentionally using starvation of civilians as a method or means of combat by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions.
   • Consenting to Pillage: Ordering, authorizing, or tolerating the pillaging of a town or place, even when taken by assault.

3. Violations of Article 3 Common to the Four Geneva Conventions (Applicable in Non-International Armed Conflicts): This article outlines fundamental protections applicable to all persons taking no active part in hostilities, including:

   • Violence to Life and Person, in Particular Murder of All Kinds, Mutilation, Cruel Treatment and Torture: Prohibits such acts against those hors de combat.
   • Taking of Hostages: Prohibits taking hostages.
   • Outrages Upon Personal Dignity, in Particular Humiliating and Degrading Treatment: Prohibits such acts.
   • The Passing of Sentences and the Carrying Out of Executions Without Previous Judgment Pronounced by a Regularly Constituted Court, Affording All the Judicial Guarantees Which Are Generally Recognized as Indispensable: Prohibits summary executions.

4. Other Serious Violations of the Laws and Customs Applicable in Armed Conflicts Not of an International Character: These are specific violations in non-international armed conflicts that reflect the realities of such conflicts:

   • Attacking Civilians (In Non-International Conflicts): Intentionally directing attacks against the civilian population or individual civilians not taking direct part in hostilities.
   • Attacking Humanitarian Assistance or Peacekeeping Missions (In Non-International Conflicts): Intentionally directing attacks against personnel, installations, material, units or vehicles involved in humanitarian assistance or peacekeeping missions in accordance with the Charter of the United Nations.
   • Attacking Medical Personnel and Facilities (In Non-International Conflicts): Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.
   • Recruiting or Enlisting Children Under 15: Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.
   • Sexual Violence: Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.
   • Ordering the Displacement of the Civilian Population: 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.

Important Considerations:

• Military Necessity: Actions that would otherwise be war crimes may be justified by military necessity, but this is a narrow exception that does not excuse violations of fundamental humanitarian principles. Military necessity cannot be invoked to justify attacks on civilians or the use of prohibited weapons.

• Distinction, Proportionality, and Precaution: Principles of distinction (distinguishing between combatants and civilians), proportionality (ensuring that incidental harm is not excessive in relation to the military advantage), and precaution (taking all feasible steps to avoid civilian casualties) are central to determining whether an act constitutes a war crime.

• Individual Criminal Responsibility: War crimes are subject to individual criminal responsibility. Individuals who commit, order, solicit, encourage, or assist in the commission of war crimes can be prosecuted. Command responsibility holds commanders liable for war crimes committed by their subordinates if they knew or should have known about the crimes and failed to take reasonable measures to prevent them or punish the perpetrators.

• Universal Jurisdiction: Some states claim universal jurisdiction over war crimes, meaning they can prosecute individuals for war crimes committed in other countries, regardless of the nationality of the perpetrator or victim.

• Sources of Law: The primary sources of law defining war crimes include the Geneva Conventions of 1949 and their Additional Protocols, the Hague Conventions, customary international law, and the Rome Statute of the International Criminal Court.