Author: Areesha Beg of Dr. B.R. Ambedkar National Law University, Sonepat
Introduction
War crimes represent some of the most serious violations of international humanitarian law, involving grave breaches that often result in significant loss of life and widespread suffering. These crimes, committed during times of armed conflict, include atrocities such as the targeting of civilians, torture, mistreatment of prisoners, and destruction of essential infrastructure such as schools and hospitals. Understanding war crimes is crucial for ensuring justice and accountability, preventing future violations, and upholding the principles of international laws.
The significance of addressing war crimes lies in its impact on humanity and the principles of international laws. Throughout history, conflicts have caused great misery, and without accountability, the cycle of violence and injustice continues. The prosecution of war crimes serves as a deterrent, reinforces the rule of law, and upholds the dignity and rights of individuals affected by conflicts. International tribunals and courts, such as the International Criminal Court (ICC) and ad hic tribunals, play a critical role in bringing perpetrators to justice, thus promoting peace, security, and human rights globally.
What are War Crimes?
The concept of war crimes developed at the end of 19th century, when international humanitarian laws were codified. According to the United Nations, “war crimes are those violations of international humanitarian law (treaty or customary law) that incur individual criminal responsibility under international law.” Consequently, war crimes, as opposed to crimes against humanity and genocide, must always occur in the context of an armed conflict, either international or non-international.
Geneva Convention
In 1864 the First Geneva Convention was adopted after the efforts of Henri Dunant, who saw the atrocities of Battle of Salferino and pushed for improved treatment for injured soldiers. The main goal of this conference was improving the health and well being of the injured and ill military personnel. The 1864 Convention was followed by the four 1949 Geneva Convention which were signed in the aftermath of World War II. The four conventions deal with different aspects of armed conflicts:
The first convention deals with the wounded and sick in armed forces in field.
The second convention protects the wounded, sick, and shipwrecked members of armed forces at sea.
The third convention details the treatment of prisoners of war.
The fourth convention addresses the protection of civilians in times of war.
The Geneva Conventions are cornerstone documents in international humanitarian law, setting standards for humane treatment during war, establishing that violations of these standards would be considered as war crimes. The conventions have been ratified by 196 countries including all the member states of the United Nations
Rome Statute
The Rome Statute was adopted on July 17, 1988, at a diplomatic conference in Rome and entered into force on July 1, 2002. The Rome Statute is the treaty that established the International Criminal Court (ICC), headquartered in The Hague, Netherlands. ICC is responsible for prosecuting individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. Article 8 of the statute provides a detailed list of acts considered as war crimes. Some of them include:
Willful killing
Torture or inhuman treatment
Extensive destruction of property unlawfully
Intentionally attacking buildings related to religious, education or charitable purposes
Destroying hospitals and medical units
Committing rape, sexual slavery, forced pregnancy
The ICC can prosecute crimes committed of a state party or by a national of a state party. Additionally, the United Nations Security Council can refer cases to the ICC. As of now, 124 countries are State Parties to the Rome Statute of the ICC. India did not sign the Rome Statute, and thus, is not a member of ICC.
Notable Cases
Nuremberg Trials (1945-1946)
The Nuremberg trials, held after the World War II were a series of trial by International Military Tribunal in order to prosecute prominent Nazi Germany. The trial marked the first time in history that international courts were used to bring war criminals to justice. The perpetrators were charged for war crimes, crimes against peace, crimes against humanity, and conspiracy to commit these crimes. Some of the defendants included Field Marshall Wilhelm Keitel, minister of interior Wilhelm Frick, Hans Frank – the Governor General of Occupied Poland and other high-ranking Nazi officials. The trials established important legal precedents for prosecuting war crimes and crimes against humanity.
Tokyo Trial
The leaders of Japan were put on trial by the International Military Tribunal for the Far East (IMTFE), which was set up by an agreement between eleven nations, for plotting to instigate and carry out war. The Tokyo trail was held to try Japanese military and political leaders for war crimes committed during World War II. The key defendants included the then Japanese Prime Minister Hideki Tojo, Seishiro Itagaki former Minister of War, Kenji Doihara – Japanese army officer, and other key figures in Japan’s wartime government. The trial underscored the accountability of military and political leaders for war crimes.
Vietnam War
The United States army was held liable for the My Lai Massacre. My Lai is village in Vietnam where the US army allegedly killed over 300 unarmed civilians including women and children. It was the most infamous incidents of the Vietnam War (1955-1975). People were shot dead, women were raped, and civilians were brutally treated by the army personnel. Lieutenant William Calley was charged with intentional killing of 22 Vietnamese civilians. The incident poses serious questions about the conduct of soldiers during a war.
Recent Issues
Russia- Ukraine (2022)
In February 2022 Russia invaded Ukraine resulting in the deaths of hundreds of unarmed civilians. In September 2022, the UN Commission declared that war crimes were committed by Ukraine. The United Nations Human Rights Commission also expressed concerns about the suffering of the civilians. It reported violations of international conventions and laws including illegal use of weapons, indiscriminate attacks, ill-treatment of civilians, violation of children’s rights and sexual violence against women.
Israel – Palestine
After October 7 attack by Palestinian group, Israel launched war on Gaza. Since then hundreds of civilians have been killed due to the ongoing attacks. A UN backed commission has declared that Israel and Palestinian group has committed war crimes in Gaza. Since October 9, 2023 Israel defense forces have been committing various atrocities against innocent civilians. The incidents include airstrike on Jabalia refugee camp, Israeli blockade of the Gaza Strip, and attacks of Rafah that attracted global attention.
Conclusion
In the wake of recent conflicts, the haunting specter of war crimes has resurfaced, urging us to confront the brutal realities of warfare and the urgent need for accountability. The prosecution of war criminals is very crucial in order to bring an end to the atrocities committed by the political leaders and military troops. International courts and tribunals such as ICC play an important role in reinforcing the rule of law. Various historical cases such as Nuremberg and Tokyo Trials have set important precedents, reinforcing that no one, regardless of rank or position, is above the law. The pursuit of justice for war crimes is an ongoing effort that requires cooperation, vigilance, and a steadfast commitment to the rule of law.
Frequently Asked Questions (FAQs)
What is the difference between war crimes, crime against humanity, and genocide?
Answer: War crimes are violations of the laws and customs of war. These include killing of innocent civilians, violation of human rights, etc. during a war. Any act which is in violation of the Geneva Conventions is considered as war crimes. Acts such as murder, torture, or rape which are committed as part of a widespread or systematic attack on a civilian population. Unlike war crimes, crimes against humanity can occur either during armed conflict or peacetime. Genocide on the other hand is totally different from war crimes and crimes against humanity. Genocides are acts against national, ethnic, racial, or religious groups which are committed with an intention to destroy them. Persecution of Uyghurs in China is an example of genocide.
Can individuals be held accountable for war crimes?
Answer: Yes, individuals can be held accountable for war crimes. Actions can be brought individually against person who commits the crime. Lieutenant William Calley a former US army officer was convicted of war crimes committed during Vietnam War in the year 1968.
What are the challenges in prosecuting war crimes?
Answer: The main legal challenge in prosecuting war crimes is jurisdiction issues. As international laws are not totally binding, war criminals frequently escape punishments. For example, Russia is not a signatory of the ICC it can easily evade prosecution for war crimes committed in Ukraine during the invasion. Another reason is political and international relations.
Sources
https://www.un.org/en/genocideprevention/war-crimes.shtml
https://www.aljazeera.com/news/2024/6/12/un-backed-commission-accuses-israel-and-palestinian-groups-of-war-crimes
https://en.wikipedia.org/wiki/List_of_war_crimes
https://www.ohchr.org/en/press-releases/2022/10/un-commission-concludes-war-crimes-have-been-committed-ukraine-expresses
