![Elements of War Crimes
■ Existence of an Armed Conflict:
See Haradinaj, ICTY, para 37
Carla del Ponte: "one indictment by the end of the year [2004]
against a high-level commander".
6](https://image.slidesharecdn.com/warcrimeslecture-230104105406-73f5fc34/85/War-Crimes-Lecture-ppt-6-320.jpg)
War Crimes Lecture.ppt
- 2. INTRODUCING TODAY’S SESSION • War crimes and their relationship with IHL. • We will consider in turn: – The concepts of war crimes and IHL. – The legal tests developed in ICL for determining whether a crime has occurred. • Presentation on the Destruction of Cultural Heritage by Dr Charlotte Woodhead 2
- 3. War Crimes ■War crimes are “grave” or “serious” violations of international humanitarian law, the branch of international law dealing with the conduct of armed conflict whether international or non-international, such as civil wars or large- scale and protracted armed clashed within a State for which individuals can be held responsible. 3
- 4. War Crimes ■ See Article 8 of the ICC Statute. ■ Please note: for each crime, please also check the Elements of Crimes. ■ The basis for Article 8 is customary and treaty law applicable to armed conflict. ■ See the 4 Geneva Conventions – Convention I protects wounded and sick in land warfare; – Convention II protects wounded, sick and shipwrecked in sea warfare; – Convention III protects prisoners of war; – Convention IV protects civilians; – Complemented by 2 Additional Protocols in 1977 (API and APII). 4
- 5. IHL v. War Crimes ■Whereas IHL is addressed to governments and other parties to a conflict and gives the standard expected in an armed conflict, war crimes covers the category of “serious” violations of IHL addressed to individuals and entails individual criminal responsibility of the perpetrator. 5
- 6. Elements of War Crimes ■ Existence of an Armed Conflict: See Haradinaj, ICTY, para 37 Carla del Ponte: "one indictment by the end of the year [2004] against a high-level commander". 6
- 7. Elements of War Crimes – § 37: – “An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups of between such groups within a State. International humanitarian law applies from the initiation of such armed conflict and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.” – “This test serves to distinguish non-international armed conflict from banditry, riots, isolated acts of terrorism, or similar situations. The Trial Chamber must determine whether (i) the armed violence is protracted and (ii) the parties to the conflict are organised”. 7
- 8. Elements of War Crimes ■ War Crimes v. Domestic Offences: ■ In Kunarac, extracts paras. 58 & 59 the ICTY held that: ■ “What ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment – the armed conflict - in which it is committed. It need not to have been planned or supported by some form of policy. The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed (…) ■ In determining whether or not the act in question is sufficiently related to the armed conflict, the Trial Chamber may take into account, inter alia, the following factors: the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrators official duties (…)”. 8
- 9. Elements of War Crimes ■ Armed conflict need not be of an international nature: – Rwanda – Confirmed by ■ the ICTY in the Tadić case (2 October 1995) ■ the ICC Statute 9
- 10. Definition ■IHL does permit attacks on military objectives and this might involve incidental civilian losses as long as they are not disproportionate to the anticipated military advantage ■We will briefly examine the: – Means and Methods of Warfare – Protection of Civilians 10
- 12. Means and Methods of Warfare • Attacks on military objectives are permitted. • However, the weapons used must not be meant to cause unnecessary suffering and destruction. 12
- 13. Protection of Civilians – Protected people: people and their property that have no active part in the hostilities. – Article 51(2) and Article 85 of API ■ The ICTY in Galić: He “conducted a coordinated and protracted campaign of shelling and sniper attacks upon the civilian population of Sarajevo, killing and wounding a large number of civilians of all ages and both sexes, such attacks by their nature involving the deliberate targeting of civilians with direct fire weapons”. ■ The ICTY clarified that an attack on civilians is constituted of acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population AND the offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence. 13
- 14. 14 Is the Use of Chemical Weapons a War Crime?
- 15. Protection of Civilians and Collateral Damage ■Limited incidental or collateral damage is acceptable, as long as suffering is kept to a minimum. – Article 52(5)(b) of API prohibits ‘an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”. 15
- 16. – Syria is not a state party: UNCS resolution or proprio motu – War crime of intentionally directing attacks against a civilian population – ICC Statute: no explicit mention, but ■ International conflicts: Art. 8(2)(b)xvii on “poison or poisoned weapons” ■ Non-international conficts: Art. 8(2)(e)(xiii) & (xiv) 16
- 17. Summary ■Acts committed during armed conflict must comply with the principles of: – Proportionality – Necessity – Self-Defence – With a view to safeguarding the civilian population 17
- 18. War Crimes ■ War crimes are ‘grave’ or ‘serious’ violations of IHL for which the perpetrator should be held responsible before a court. ■ The regular prosecution of war crimes could have an important preventive, deterrent and expressive effect as it: – Clarifies that IHL is law; – Has a stigmatising effect in the eyes of public opinion; – Places responsibility and punishment on the individual. ■ Prosecutorial discretion: most large-scale and representative crimes, see: OTP Letter re: Iraq, 9 February 2006. 18
- 19. Filmography • Afghan Massacre: The Convoy of Death (Afghanistan, Documentary 2003); • The Battle of Algiers (Algeria, 1967); • The Official Story (Argentina, 1985); • No Man’s Land (Balkans, 2001) • Welcome to Sarajevo (Bosnia, 1997) Child Soldiers: • Johnny Mad Dog (2008) • War Witch (2012) • Ezra (2007) 19