Author: Parnika N Abhilash, Asian Law College
Overview
War crimes are major breaches of international law that pose a grave danger to humanity, undermine peace, and endanger the safety of civilians. These acts violate established customs of war and have become increasingly significant due to the wars and attacks on civilians that occurred globally between 2021 and 2025. In times of conflict, it is crucial to implement specific safeguards to protect civilians—those not engaged in hostilities—as well as individuals seeking safety, including military personnel. Failure to uphold these protections compromises the basic human rights of ordinary people.
Use of Legal Jargon
Numerous treaties, traditions, and international regulations delineate what qualifies as war crimes, with Article 147 of the Fourth Geneva Convention clearly specifying these offenses.
Indicators of War Crimes: The following indicators can help identify war crimes:
1.Violations of the laws and traditions that regulate warfare directly.
2. Illegal actions aimed at property or civilians.
3. Unlawful imprisonment of individuals.
4. Killing, mistreatment, and displacement of civilians in occupied regions.
5. Unjustified devastation of cities and towns.
6. Execution of captives.
During the Fourth Geneva Conference, four key conventions were adopted, along with two additional protocols. The Rome Statute of the International Criminal Court classifies war crimes as “Crimes Against Humanity,” which encompass acts such as genocide, sexual violence, murder, and enslavement. It is essential to acknowledge three core principles that govern the practice of warfare: distinction, proportionality, and precaution. Any infringement of these principles is deemed a war crime that must be denounced. The Rome Statute founded the International Criminal Court (ICC) in 2002, with the primary goal of prosecuting individuals charged with war crimes and crimes against humanity. The court’s authority includes offenses that occur in member states or involve nationals from those states. It operates based on the principles of accountability and justice, emphasizing that no one, regardless of their position or status, is exempt from the law. This legal structure for prosecuting war crimes seeks to deter future violations by bringing offenders to justice. The ICC acts as an autonomous organization, maintaining neutrality in its operations. It conducts investigations and trials to collect evidence and secure just results for victims and communities affected by these atrocious acts. Through its work, the ICC fosters a deeper understanding of international law and stands as a symbol of hope for those pursuing justice. The protection of victims and witnesses in war crimes cases involves measures aimed at ensuring the safety, confidentiality, and support for those who participate in legal proceedings. These safeguards are essential for encouraging testimony from individuals who might otherwise be afraid of retaliation. Various mechanisms are in place to protect victims and witnesses, which include:
Maintaining anonymity during trials to avoid identification.
Providing counseling services to help manage trauma.
Working with law enforcement to ensure physical security.
Robust victim and witness protection not only bolsters the judicial process’s integrity but also creates a safe environment for individuals to provide vital evidence. The legal framework for prosecuting war crimes recognizes these protections as crucial for achieving justice and accountability regarding heinous offenses. Global entities such as the International Criminal Court (ICC) have established guidelines to address protection issues. Comprehensive strategies for protection play a significant role in enhancing the effectiveness of the legal framework for war crimes prosecutions, ultimately ensuring that victims’ rights are preserved.
The Proof
The International Criminal Court (ICC) is a global court that investigates and punishes serious crimes that affect the international community. The offenses consist of genocide, crimes against humanity, war crimes, and acts of aggression. When a country joins the Rome Statute, it agrees to accept the ICC’s authority over these crimes. The Court can take action if the accused is a citizen of a member country or if the crime happened in a member country’s territory. Also, a nation that is not a member may opt to acknowledge the ICC’s jurisdiction. The ICC holds individuals accountable rather than groups or countries. Any person accused of committing crimes that fall under the ICC’s jurisdiction may be brought before the Court. The Office of the Prosecutor concentrates on pursuing those who are most responsible for the crimes, regardless of their status or position . The ICC operates as a legal institution with a distinct judicial authority, free from political pressure. Its decisions are based on legal doctrines and are issued by unbiased judges, following the provisions of its foundational agreement, the Rome Statute, as well as other legal documents that regulate the Court’s operations. The ICC operates based on principles of both territorial and personal jurisdiction. Territorial jurisdiction is relevant when offenses take place within the borders of a state party, while personal jurisdiction applies to individuals from countries that have endorsed the Rome Statute, no matter where the crime has taken place. This extensive framework is essential to the legal structure for prosecuting war crimes. In executing its responsibilities, the ICC undertakes investigations and prosecutions, ensuring accountability at the highest levels of authority. Its goal is to supplement national judicial systems, stepping in only when nations are either unwilling or unable to effectively address crimes. This two-pronged approach highlights the critical role of the ICC within the international legal framework established to combat war crimes.
Case Laws
This case examines sexual violence in the contexts of conflict in Afghanistan and Colombia. It also explores various forms of violence that go beyond the standard definition of sexual violence, particularly those that uniquely affect LGBT+ and gender-diverse individuals. These individuals often become targets of violence stemming from discrimination based on sexual orientation and gender identity. Despite the distinct patterns of violence they face, the protection of LGBT+ and gender-diverse persons during armed conflicts has been described as a “blind spot” within International Humanitarian Law (IHL).
The Netherlands, Combat in the Chora District (Afghanistan):- During the evening of June 16-17, 2007, Dutch troops carried out an airstrike on a quala (a fortified residential compound) in the Chora district of Afghanistan. Before the strike, the Dutch military had detected an “ISIS Snapshot” nearby and had come under fire from that area. The bombing led to civilian deaths. Relatives and family members of those who died in the attack filed a lawsuit against the Netherlands in the Hague District Court. The Court determined that the Netherlands failed to adhere to its international humanitarian law (IHL) responsibilities, particularly the principle of distinction, and mandated compensation to be paid to the plaintiffs.
Switzerland, Swiss Federal Criminal Court Finds Liberian Commander Guilty of War Crimes:- This matter pertains to the ruling by the Swiss Federal Criminal Court regarding Alieu Kosiah, a Liberian individual who faced charges for multiple offenses, including the enlistment of a child soldier and directing the killings of civilians, which occurred during the First Liberian Civil War (1989-1996). Alieu Kosiah served as a commander in the United Liberation Movement of Liberia for Democracy (ULIMO), a rebel faction that participated in an armed struggle against the National Patriotic Front of Liberia (NPFL). This ruling marked the first occasion on which a Liberian citizen was convicted of war crimes linked to the Liberian Civil Wars.
In 2020, the UN Security Council called for a global ceasefire and a pause in fighting to help address the issues caused by COVID-19. Some reports indicated that certain Non-State armed groups (NSAGs) adhered to this request. Nonetheless, others continued their hostilities, and many implemented control measures to fight the pandemic. This case examines how these armed groups reacted to the pandemic and delves into the issues related to armed group governance. Moreover, the situation raises inquiries about whether the pandemic marks a transition toward acknowledging that non-state armed groups have broader obligations regarding human rights.
Conclusion
War crimes prosecutions encounter considerable obstacles that can hinder justice for victims and the enforcement of international law. Political interference frequently acts as a barrier, particularly when influential nations are involved. National interests may sway the pursuit of justice, resulting in selective prosecutions or complete inaction against those accused of war crimes. In addition, gathering evidence for war crimes cases is filled with challenges. Areas affected by war often lack stability, making it difficult to secure witnesses, collect documentation, and validate incidents. The tumultuous environment poses significant difficulties for investigators and prosecutors, which can lead to unproven claims and lost chances for accountability. Furthermore, the global nature of conflict often complicates jurisdictional issues. Differing legal standards, varying interpretations of what defines a war crime, and states’ reluctance to collaborate with international tribunals create additional hurdles. Such factors ultimately weaken the legal framework for war crimes prosecutions and obstruct efforts to achieve justice. Political interference in war crimes cases can greatly compromise the integrity and effectiveness of legal systems intended to hold offenders accountable. Governments may obstruct legal processes due to self-interest, fearing consequences for their military or political allies. Such actions result in an environment where justice is deprioritized in favor of political convenience. For example, cases involving powerful nations or their leaders frequently encounter intense pressure to reduce repercussions. In this scenario, the legal structures governing war crimes prosecutions can be distorted, leading to delayed investigations or biased prosecutions. This distortion can diminish public confidence in both national and international judicial system.
FAQS
1. How do you respond to critics who say that the ICC’s work is weakened by countries that refuse to follow its rules?
Ans. The International Criminal Court functions under the Rome Statute, and its effectiveness heavily relies on the collaboration of its member states. Although it is a fact that some influential nations have either opted not to join the ICC or have questioned its authority, this does not undermine the Court’s efforts. The ICC has been instrumental in promoting accountability for grave offenses such as genocide, war crimes, and crimes against humanity. The lack of cooperation from certain countries poses difficulties, but it simultaneously stresses the need to enhance international standards and foster wider involvement. The Court continues to seek justice within its jurisdiction and depends on global backing to transform accountability into a reality.
2. What do you think about those who believe that political factors can affect the ICC’s decisions, possibly causing unfair outcomes?
Ans. This worry is reasonable, particularly considering the delicate aspects of international justice. The ICC was established to function as an independent and impartial judicial institution, with judges and prosecutors held to rigorous legal standards rather than political motivations. Nonetheless, due to its operation within a worldwide political context, it can be subject to views of bias, especially when dealing with cases that involve influential nations or intricate geopolitical matters.
3. Have you thought about the idea that the ICC might not hold everyone accountable for war crimes, since it mainly targets high-ranking officials and might ignore lower-level offenders?
Ans. The ICC is organized to prioritize those who are most responsible for the most serious crimes—usually political and military leaders—because it was established to complement rather than replace national legal systems. The concept is that lower-level offenders should be tried by local courts, while the ICC focuses its limited resources on holding high-level decision-makers accountable. This doesn’t imply that others are free from accountability; it indicates a strategic prioritization aimed at achieving the most significant impact. Nonetheless, this balance is continually assessed, and the Court promotes the development of domestic capacity to deal with all levels of criminal accountability.
