What Is A War Crime?

What is the law of war?  And how does one criminalize a war crime?

by Dr. Ruwantissa Abeyratne in Montreal

“War is only a cowardly escape from the problems of peace.” – Thomas Mann

CNN reported on Tuesday 5 April 2022: “ President Joe Biden on Monday said the atrocities allegedly committed by Russian forces in Bucha, Ukraine, are a "war crime" and called for a trial to take place against Russian President Vladimir Putin”.

So, what is a war crime?

When simplistically put the definition is: a war crime is a violation of the law of war.  Such a violation must be criminalized under criminal law.  It helps if criminalized conduct at war has been recognized as such historically.

It is reported that the first war crime trial goes back to the fifteenth century where in 1474, an ad hoc tribunal of the Holy Roman Empire convicted  Peter von Hagenbach for being in command of soldiers in a military force whose criminal conduct could have been prevented by him in his capacity as a knight.   The Tribunal rejected his argument that he had merely been following orders of his superiors.

So, what is the law of war?  And how does one criminalize a war crime?

One could say that a war crime is a crime against humanity committed during war. One succinct example is Article 165 of the Military Code of The Republic of Congo (2002) which provides that crimes against humanity are grave violations of international humanitarian law committed against any civilian population before or during war.

Italian jurist and renowned international law scholar Antonio Cassese defines a war crime as  “a violation of the laws of war that gives rise to individual criminal responsibility for actions by the combatants, such as intentionally killing civilians or intentionally killing prisoners of war, torture, taking hostages, unnecessarily destroying civilian property, deception by perfidy, wartime sexual violence, pillaging, the conscription of children in the military, committing genocide or ethnic cleansing, the granting of no quarter despite surrender, and flouting the legal distinctions of proportionality and military necessity”.

German Jurist L.F.L. Oppenheim, in his celebrated thesis on international law says there are four different kinds of war crime: violations of recognized rules of warfare by enemy armed forces, if carried out without orders; hostilities committed by individuals not members of the enemy armed forces; espionage and war treason; and marauding acts.

The Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 1977, and the Hague Conventions of 1899 and 1907 consider war crimes to be serious breaches of international humanitarian law committed against civilians or enemy combatants during an international or domestic armed conflict, for which the perpetrators may be held criminally liable on an individual basis.

The most exhaustive list of war crimes is contained in Article 8 of the Statute of the International Court of Justice of which just a small portion is as follows: 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:  wilful killing; torture or inhuman treatment, including biological experiments; wilfully causing great suffering, or serious injury to body or health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; unlawful deportation or transfer or unlawful confinement; and taking of hostages.

The International Law Commission in 1991provisionally adopted a Draft Code of Crimes Against the Peace and Security of Mankind which provides for individual criminal responsibility with regard to aggression; genocide; any crime against humanity; any crime against the United Nations and associated personnel; and war crimes. In this context individual responsibility and State responsibility may be considered as mutually exclusive on a case-by-case basis. For example, with regard to the situation in Somalia in the early 1990s The United Nations By Resolution 794 (1992) and Resolution 814 (1993) unanimously condemned breaches of humanitarian law that could be attributed to individuals who were considered individually responsible for such breaches. 

The International Committee of the Red Cross (ICRC) has interpreted the various principles pertaining to war crimes as: persons not engaged in combat and those who do not take part in hostilities are entitled to respect for their lives and physical and moral integrity;  it is forbidden to kill or injure an enemy who surrenders or who is not engaged in combat;  the wounded and sick should be collected and cared for; captured combatants and civilians are entitled to respect for their lives; and everyone should be entitled to fundamental judicial guarantees.

This is where it gets complicated. As authors Oona A. Hathaway, Paul K. Strauch, Beatrice A. Walton, Zoe A. Y. Weinber say in the Yale Journal of International Law in 2019: “As international criminal liability continues to spread, this “it’s a war crime if it’s been criminalized” approach is likely to yield a plethora of disconnected criminal statutes with little underlying rhyme or reason guiding them. When existing international tribunals, including most notably the International Criminal Court (ICC), add new war crimes to their statutes or prosecute for the first time those already included in their statutes, the apparent need to prove that the offenses have been “criminalized” may produce inconsistent results and uncertainty about the corpus of war crimes. When domestic courts and prosecutors are called to assess whether a particular act mentioned in a domestic statute amounts to an international “war crime,” the current approach fails to provide clear guidance on where to look for confirmation”.

With regard to domestic jurisprudence The United States offers some examples of adjudication.  In the 1985 case of Sanchez-Espinoza v. Reagan where the United States support of the Contra guerillas in Nicaragua fighting against the government of that county, The Court of Appeals held that in considering  domestic legislation i.e. The Alien Tort Claims Act, customary international law did not cover violations by U.S. officials of domestic and international law, as the statute only covered private non-governmental acts and customary international law did not cover private conduct.  The Act therefore covered official State acts against which sovereign immunity would apply to preclude liability.  

In the 1995 case of Kadic v. Karadzic where certain violations of international law were concerned such as genocide, war crimes and other violations  The U.S. Court of Appeals confirmed that The Alien Tort Act would apply to both State and non-State actors with regard to such acts but when torture and summary execution were not committed within genocide or war crimes  such reprehensibility would devolve upon only State officials or those who perform such acts under color of law.  

Finally, it is worthy of note that although 123 countries are members of the International Criminal Court located in the Hague, Russia, the United States and Ukraine are not part of it, but Ukraine has accepted the Court’s jurisdiction. It must also be noted that the ICC considers its jurisdiction as territorial: in other words, the Court focuses on the territory that is subject to aggression or offence rather than State membership.