Robbins: What constitutes a war crime?
It seems our world is in a mess.
Setting aside our own domestic turmoil, there is the bloodbath in Ukraine, the horrors in Israel-Gaza, the nervousness about Taiwan and the South China Sea, prickly Iran, nervous Syria, and a host of other hotspots that, at a moment’s notice, could burst into flame.
One only needs to study history to know the unlikely spark that might ignite a wider war. Sarajevo comes first to mind.
More and more, what is batted about beyond the quotidian horrors of modern warfare’s suffering are accusations of crimes. When does bombardment, destruction, death, and the inevitable and mounting toll of civilian losses bleed over from statistics to criminal misconduct?
Vladimir Putin and his henchmen, many claim, are criminals. Depending on which side you’re on, Hamas or the IDF, or maybe both. One would not need to range much further to implicate perhaps many others.
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The question of what exactly constitutes a war crime is one that has been long wrestled with.
Even though the prohibition of certain behavior in the conduct of armed conflict can be traced back many centuries, the concept of war crimes developed particularly at the end of the 19th century and the beginning of the 20th century when international humanitarian law, also known as the law of armed conflict, was codified.
The Hague Conventions adopted in 1899 and 1907 focus on the prohibition of warring parties to use certain means and methods of warfare. Several other related treaties have since been adopted.
Perhaps the better-known Geneva Conventions, most notably the post-World War II four 1949 Geneva Conventions and the two 1977 Additional Protocols, focus on the protection of persons not or no longer taking part in hostilities.
The 1949 Geneva Conventions have been ratified by all member states of the United Nations, while the Additional Protocols and other international humanitarian law treaties have not yet reached the same level of acceptance. However, many of the rules codified in these treaties have been considered as part of customary law and, as such, are binding on all states (and other parties to the conflict), whether or not a particular state has ratified the treaties themselves. In addition, many rules of customary international law apply in both international and non-international armed conflict, expanding in this way the theoretical protections afforded in non-international armed conflicts, which are regulated only by common article 3 of the four Geneva Conventions and Additional Protocol II.
Both the Hague Law and the Geneva Law identify several of the violations of warfare’s “norms” (if one even dares call it that), though not all are identified as war crimes.
Although lists of war crimes can be found in both international humanitarian law and international criminal law treaties — as well as in international customary law — there is simply no one single document or source in international law that codifies all offenses that rise to the level of a war crime.
So what, then, is a war crime?
War crimes are those violations of international humanitarian law (treaty or customary law) that incur individual criminal responsibility under international law. As a result, and in contrast to the crimes of genocide and crimes against humanity, war crimes must always take place in the context of an armed conflict, either international or non-international.
What constitutes a war crime may differ, depending on whether an armed conflict is international or non-international. For example, Article 8 of the Rome Statute of the International Criminal Court categorizes war crimes as follows:
- Grave breaches of the 1949 Geneva Conventions, related to international armed conflict;
- Other serious violations of the laws and customs applicable in international armed conflict;
- Serious violations of Article 3 common to the four 1949 Geneva Conventions, related to armed conflict not of an international character;
- Other serious violations of the laws and customs applicable in armed conflict not of an international character.
More substantively, war crimes may be divided into: a) crimes against persons requiring particular protection; b) crimes against those providing humanitarian assistance and peacekeeping operations; c) crimes against property and other rights; d) prohibited methods of warfare; and e) prohibited means of warfare.
Some examples of prohibited acts include: murder (distinct from combat); mutilation; torture; taking of hostages; intentionally directing attacks against civilian populations; intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals; pillaging; rape, sexual slavery, forced pregnancy or any other form of sexual violence; conscripting or enlisting children under the age of 15 years into armed forces or using them to participate actively in hostilities.
All are horrible to think of. All are going on.
Although the weaponry of war clearly has rapidly advanced, one wonders if the human conscience has the will or the capacity to keep up.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or at his email address: [email protected]. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers. And coming soon, “He Said They Came From Mars” and “The Theory of Dancing Mice.”
