Sri Lanka: What really is a war crime?

| by Dr. Ruwantissa Abeyratne

( October 13, Montrea, Sri Lanka Guardian) In his article entitled Necessary to both address and redefine war crimes” in the Sri Lanka Guardian of 11 October 2011, Jehan Perera says very aptly inter alia : “There is also a need to identify a consensual view internationally of what is a war crime”. Amidst the prevailing confusion and the apportionment of blame on certain regimes (sometimes without the necessary statistics and data) for “war crimes”, I would go as far as saying that there is a compelling need to understand what a war crime is in its contemporary definition. This article provides just a snapshot.

Immediately after World War II, the International Military Tribunal, which held its hearings between October 18, 1945, and October 1, 1946 in Nuremburg, tried 22 "major" war criminals of Nazi era criminality on charges of crimes against peace, war crimes, and crimes against humanity, and conspiracy to commit such crimes. The Tribunal defined crimes against humanity as "murder, extermination, enslavement, deportation...or persecutions on political, racial, or religious grounds." Twelve of those convicted were sentenced to death.

Both war crimes and crimes against humanity are species of the genus international humanitarian law and whereas war crimes usually are committed during a war, crimes against humanity may be committed before, during or after a war or even under circumstances where there is no war.

A war crime is defined in Article 147 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, popularly referred to as the Fourth Geneva Convention, which was adopted in August 1949 as: "wilful killing, torture or inhuman treatment, including... wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile power, or wilfully depriving a protected person of the rights of fair and regular trial, ...taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly."

Wikipedia defines war crimes as : “serious violations of the laws applicable in armed conflict (also known as international humanitarian law) giving rise to individual criminal responsibility” and cites examples of war crimes as 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.

Tarik Kafala, reporting to BBC News comments: “genocide, crimes against humanity, mistreatment of civilians or combatants during war can all fall under the category of war crimes. Genocide is the most severe of these crimes”.

The United States War Crimes Act of 1996 - a federal statute - makes it a federal crime for any U.S. national, whether military or civilian, to violate the Geneva Convention by engaging in murder, torture, or inhuman treatment. The statute is applicable not only to those who carry out the acts, but also to those who order them, are aware of them, or those who fail to take necessary measures to prevent them. The law applies to all with no exception. The penalty prescribed by the Act may be life imprisonment, or death if a single prisoner dies due to torture.

The Statute of the International Criminal Tribunal for the Former Yugoslavia, established by Security Council Resolution 827 (1993), which is derived from the Geneva Convention, recognizes at its base that a war crime requires the unique mental element of specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. Article 5 confers on the Tribunal jurisdiction over crimes against humanity by perpetrators who commit one or more of the offences enumerated in the article’s provisions with the knowledge that their acts formed part of a widespread or systematic attack against a civilian population. The Statute grants jurisdiction over only those crimes against humanity committed in armed conflict, whether international or internal, signalling a departure from customary international law. (The existence of an armed conflict is a prerequisite to triggering the Tribunal's jurisdiction). The United Nations Security Council has the authority to amend the Statute by Resolution.

The Statute provides in Article 7 that individual criminal responsibility may be engaged if a person planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime, irrespective of the official position of the accused person, whether as Head of State or Government or as a responsible Government official.

Under the Act, the fact that the crime was committed by a subordinate does not relieve his superior of criminal responsibility if the superior had effective control over the subordinate; knew or had reason to know that the subordinate was either about to commit the crime or had already done so; and failed to take the necessary and reasonable measures to prevent the crime or to punish the subordinate perpetrator after the event. Embodied in Article 7 is also the theory known as the Joint Criminal Enterprise Theory of Individual Criminal Responsibility, according to which persons are individually responsible for the commission of a crime as part of “a plurality of co-perpetrators who act pursuant to a common purpose involving the commission of a crime in the Statute”.

This provision effectively precludes the perpetrator, such as Hermann Goering who was tried at Nuremburg, from hiding behind the argument that he was just following orders and that the responsibility of his act should devolve upon those who singularly or collectively ordered him to commit the act in question. Goering said of his actions under the Third Reich at his trial: "during the war I was an officer, a soldier, and I was not concerned with whether I shared an opinion or not… I had merely to serve my country as a soldier."

Finally the question: “what is the difference between war crimes and crimes against humanity”? War crimes are grave violations of the principles of customary and treaty law which pertain to international humanitarian law. Such violations are now considered in modern parlance as criminal offenses for which there is individual responsibility. A crime against humanity is any particularly criminal act that leads to a grave attack on human dignity or severe humiliation or degradation of one or more human beings. These offenses may stem from government policy, or be protected by government condonation or insouciance. Offences against humans based on their culture, race, religion or political beliefs, such as those committed by the Nazi era goons during the holocaust, also constitute crimes against humanity.

Both war crimes and crimes against humanity are species of the genus international humanitarian law and whereas war crimes usually are committed during a war, crimes against humanity may be committed before, during or after a war or even under circumstances where there is no war.

International humanitarian law is composed of two integral parts : the law of the Hague and the law of Geneva. The former is what is commonly known among international lawyers as the law of war which regulates the means and methods of warfare. It is codified primarily in the regulations respecting the Laws and Customs of War on Land ("the Hague Regulations") annexed to the 1907 Hague Convention. The Hague Regulations provide principles applicable to warfare or the conduct of hostilities and regulate matters such as the selection of targets and weapons permissible during armed conflict. The law of Geneva protects war victims who can be categorized civilians, the wounded, and prisoners of war.

The above notwithstanding, the bottom line is that the underlying principle applicable to war crimes and crimes against humanity should be the fundamental principles of culpability at the base of criminal law – which is that any crime has two component elements: the actus reus – the culpable act – and mens rea – the mental element connected to the intent to commit the crime, and that any State or other person should be presumed innocent, until proved guilty.