International Law Unit 10: War Crimes

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International Law Unit 10 War Crimes

• Prof. Fred Morrison
• Fall 2005

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Outline of the Presentation(Morning Presentation)

• War Crimes
• Historical development
• Treaty law and customary law
• Relevant treaties
• Hague and Geneva Conventions and Protocols
• Arms limitation treaties
• Anti-aggression rules
• Customary law

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Outline of the Presentation(Afternoon
presentation)

• War crimes procedures
• Prosecutions within own forces
• Military commissions
• Civilians and civilian proceedings
• International proceedings
• Nuremberg
• Yugoslavia, Rwanda
• Sierra Leone, Cambodia
• The International Criminal Court

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War Crimes I. History and Introduction
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War crimes the Origins

• Middle Ages the concept of chivalry
• War as an art form
• The decline of chivalry
• Crusades War with the Infidel
• Reformation Loss of common bond
• Rise of nationalism State as ultimate
• Changes in weaponry

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War crimes Emergence of the modern concept in
Europe

• Europe, 1859 (Battle of Solferino)
• The role of Henri Dunant
• Formation of a private Swiss organization, which
  later (1876) became the International Committee
  of the Red Cross
• Original Geneva Convention (1864)

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War crimes Emergence of the modern concept in
the U.S.

• The American Civil War (1861-1865)
• The role of Francis Lieber
• Lincolns General Order No. 100 Instruction
  for the Government of the Armies of the United
  States in the Field

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War crimes Development of the modern concept

• Hague Conferences, 1899 and 1907
• Fyodor Fyodorovich Martens, Russian diplomat
• Hague Conventions
• Convention IV on the Laws and Customs of War, and
  accompanying Regulations
• Regulations, Art. 22 The right of belligerents
  to adopt means of inuring the enemy is not
  unlimited.

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War crimes Making aggressive war illegal

• Limits on the use of force
• League of Nations Covenant, 1919
• Pact of Paris, 1928
• United Nations Charter, 1945

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War crimes Genocide

• Genocide Convention, 1948
• Really a human rights convention applies also
  outside of the war context

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War crimes Codifying what is allowed and
prohibited

• Geneva conventions, 1949
• I. Wounded and Sick
• II. Shipwrecked
• III. Prisoners of War
• IV. Civilians
• Geneva protocols, 1977
• I. Protection of Victimes
• II. Non-international Conflicts

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War crimes Limiting weapons

• Small explosive projectiles
• Atomic
• Biological
• Chemical
• Land Mines
• Child soldiers
• Mercenaries

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War crimes trials

• Andersonville, 1865
• The Treaty of Versailles
• Provisions about the Kaiser
• The Leipzig trials
• Nuremberg and Tokyo, 1946
• Lieut. Calley

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War crimes trials recent

• Yugoslav tribunal
• Rwandan tribunal
• Sierra Leone tribunal
• International Criminal Court
• Referral of charges on Dafur

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War crimesSome important influences

• Changes in weaponry
• Greater destructive capability
• Changes in civilian involvement
• Total war
• Changes in communication
• The CNN effect

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Interplay of Humanitarian Law and Human Rights Law

• Humanitarian law
• Law regulating the conduct of armed conflict
• Human rights law
• Law regulating the treatment of individuals by
  governments

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II. Treaties Customary Law
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Treaties and Customary Law

• Treaties
• Established by signature and ratification (or
  accession or acceptance)
• Binding only on parties
• Binding only in their own terms

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Bibliographic note

• For easy access to information about humanitarian
  law, go to the web site of the International
  Committee of the Red Cross
• www.icrc.org
• For texts, etc., of treaties, go to
• www.icrc.org/ihl

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Treaties and Customary Law

• Customary Law
• Created by long practice accepted as law
• Binding on all States
• Less precise statement of rules

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Types of treaties

• 1. Classic war crimes treaties
• Hague Conventions and Regulations
• Geneva Conventions
• Geneva Protocols
• 2. Some special treaties
• Genocide
• Torture

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Types of Treaties

• 3. Armaments/Disarmament treaties
• Atomic
• Biological
• Chemical
• Land Mines
• Child Soldiers
• ICBM

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Types of treaties

• 4. Relationship to general human rights
  treaties
• Relationship of human rights law to
  humanitarian law

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Questions to ask about treaties

• 1. How many parties? Is it broadly accepted?
• 2. Are its terms also customary law?
• 3. What conflicts are in fact covered?
• Are the participants parties?
• Is the conflict international?
• Conflicts with non-signatory parties?

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Questions to ask about treaties (contd)

• 4. Who is protected?
• 5. What are substantive obligations?
• 6. What are obligations on the parties to to
  enforce the provisions?
• 7. Have the treaty provisions become customary
  law

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Substantive Treaties Part 1Classic War Crimes
Treaties

• Hague Conventions, 1907
• Geneva Conventions, 1949
• Geneva Protocols, 1977

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Hague Convention and Regulations

• Adopted 1907
• Only 35 parties mostly European and Latin
  American
• Nevertheless forms the basis of much of modern
  humanitarian law
• Relatively brief

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Hague Convention

• It is one of a series of conventions proposed by
  the Hague Conferences, regulating such topics as
• The formalities of declaring war
• The working of prize courts
• Maritime warfare and the laying of marine mines

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Hague Convention

• Only applies if all belligerents are parties to
  the Convention (Conv.art.2)
• Hence it only applies to international conflicts
• Does not apply at all if any party to the
  conflict is not a party to the Convention
• Actual rules contained in its Regulations

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Hague ConventionSubstantive provisions

• Primarily directed at means of conducting armed
  conflict
• Protection of POWs and of civilians has been
  superseded by other agreements

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Hague ConventionSubstantive provisions

• Applies to armies and also to militia and
  volunteer corps, provided that
• Commanded by a person responsible for his
  subordinates
• Fixed distinctive emblem recognizable at a
  distance
• Carry arms openly
• Conduct their operations in accordance with laws
  of war (Reg.art.1)
• Also applies to civilians who organize
  spontaneously to resist invasion (Reg.,art.2)

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Hague ConventionSubstantive provisions

• Some provisions are quaint
• Provisions about parole release (R.art.9)
• Officers continue to be paid (but by the
  captor(!!)) (R.art.17)

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Hague ConventionSubstantive provisions

• The Martens clause
• The right of belligerents to adopt
• means of injuring the enemy
• is not unlimited
• (Reg.art.22)

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Hague Convention Subtantive Provisions

• Prohibitions (Reg.art.23)
• Poison or poisoned weapons
• Kill or wound treacherously
• Kill or would those who have surrendered
• Declare that no quarter will be given
• Use arms that cause unnecessary suffering
• Misuse flags (truce, national, Red Cross)
• Unnecessarily destroy enemy property
• Abolish rights of enemy in national courts
• Require enemy nationals to serve in army

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Hague ConventionSubstantive provisions

• Other prohibitions
• Attack on undefended cities (Reg.art.25)
• Qualified protection of churches, art, science,
  charitable property, historic monuments,
  hospitals (Reg.art. 27)
• Pillage (Reg.art.28)
• Special rules for spies (Reg. art. 29-31)

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Hague ConventionSubstantive provisions

• Rules relating to occupation of territory
• Restore peace and order, respecting existing laws
  of the territory (Reg.art.43)
• Private property protected (Reg.art.46)
• Occupation authorities have only right of
  usufruct of public buildings (Reg.art.55)

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Hague ConventionRemedial provisions

• Remedy Offending State must pay compensation
  after the war (Conv.art.3)!
• Offending State responsible for all persons
  forming part of its armed forces
• Note A State-based system, not an individual
  responsibility system

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Hague ConventionIs it customary law?

• Many provisions are now viewed as the foundation
  of customary law in the field.

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Hague ConventionSome thoughts

• How does it deal with revolutions and popular
  movements?
• Does it assume that States can control everything
  within their borders?
• Is it relevant given modern technology?

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A trip along the RhineFrom the Hague to Geneva

• For the Hague (1907) to Geneva (1949) two World
  Wars were fought many other conflicts many
  revolutions
• These were under Hague rules and the older forms
  of the Geneva conventions
• Hague relates mainly to conduct of war
• Geneva relates mainly to protecting people
• Beginnings of prohibitions on use of force
• League of Nations
• Pact of Paris

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Geneva Conventions

• Based on principle of protecting classes of
  individuals
• They introduce the beginnings of limited
  individual responsibility

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Geneva Conventions of 1949

• 4 Geneva Conventions
• Wounded
• Wounded and shipwrecked at sea
• Prisoners of war
• Civilians
• Some provisions are the same in all 4
• Common articles 1-3

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Geneva Conventions

• Adopted 1949, under the auspices of the
  International Committee of the Red Cross
• 190 parties, almost universally adopted
• Provides the modern foundation for humanitarian
  law

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Geneva ConventionsWhat conflicts covered

• Must distinguish between
• Full obligations
• Limited obligations of Common Article 3

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Geneva ConventionsFull obligations

• Conventions apply
• As between parties to it, even if other combatant
  States are not parties
• As between combatants, even if not parties, if
  they accept and apply it
• Even if there is no formally declared war
• (Convs.common art.2)

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Geneva ConventionsTo Whom Do They Apply

• POW Convention
• Armed forces
• Militias and volunteer corps, if
• Commanded by a person responsible
• Fixed distinctive sign recognizable at distance
• Carrying arms openly
• Conducting operations in accord with law of war
• Contractors
• Civilians who take up arms on attack, carry them
  openly, and respect laws of war

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Geneva POW ConventionTo Whom Does It Apply

• Civilian Convention
• Any person who finds himself in the hands of a
  party to the conflict (art.4), but not
• Nationals of that Part
• Nationals of a State with which that Party has
  friendly relations
• Persons detained under Geneva 1, 2, or 3
• Spies and saboteurs (art.5)

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Limited obligations in non-international conflict

• Common article 3 extends limited obligations to
  persons involved in conflict not of an
  international character

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Geneva POW ConventionSubstantive Obligations

• A belligerent falling into the control of the
  enemy is a POW until such time as as their
  status has been determined by a competent
  tribunal. (Conv3,art.5,para.2)

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Geneva POW ConventionSubstantive Obligations

• General principles and detailed and specific
  obligations
• General obligation
• Prisoners of war must at all times be humanely
  treated. (Conv3.art.13)
• Prisoners of war are entitled in all
  circumstances to respect for their persons and
  their honour (Conv.3.art.14)

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Geneva POW ConventionSpecific Obligations

• Identification
• Name, rank, date of birth, serial number (art 17)
• Quarters, food, clothing (arts. 25-28)
• Medical attention (arts. 29-32)
• Chaplains (arts. 33-38)

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Geneva POW ConventionSpecific Obligations

• Compulsory labor (arts. 49-57)
• Financial rights (arts. 58-68)
• Communications (arts. 69-77)
• Communications with Red Cross (arts. 78-81)

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Geneva POW ConventionSpecific Obligations
(contd)

• Discipline not to exceed 30 days (arts. 82-98)
• Juridical Proceedings (arts. 99-108)
• Release (arts. 109-119)
• Information Bureaus, etc., (arts. 120-125)

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Geneva POW ConventionEnforcement

• Through military orders and other measures to
  suppress acts contrary to the Convention (art.
  129)
• Through criminal legislation punishing grave
  breaches (art. 129)
• Grave breaches include acts of wilful killing,
  torture or inhuman treatment, or wilfully
  depriving a prisoner of war of the rights of fair
  and regular trial . (art. 130)

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Geneva POW ConventionSupervision

• Role of the Protecting Power
• Frequently the ICRC is designated as the
  protecting power

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Geneva Civilian ConventionTo Whom Does It Apply

• those who, at a given moment and in any manner
  whatsoever, find themselves, in case of a
  conflict or occupation, in the hands of a Party
  to the conflict or Occupying Power of which they
  are not nationals. (art.4)
• But not
• Citizens of that country
• Citizens of a 3rd country with normal diplomatic
  relations
• Those protected by Geneva 1, 2, or 3

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Geneva Civilian ConventionSubstantive Provisions

• Protection of civilians (arts.27-46)
• No pillage, reprisals, hostages (art.33)
• Regulation of occupied territories (arts.47-78)
• Occupying Power may create security areas (art.
  49)
• Destruction of private property usually
  prohibited (art.53)
• Regulation of internment (arts. 79-135)
• In general, these parallel the POW provisions

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Geneva Civilian ConventionEnforcement

• Each Party to enact laws to punish grave
  breaches and to search for and prosecute those
  who commit those crimes (art. 146)

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Geneva Civilian ConventionSupervision

• Protecting Power provides supervision
• Frequently this is the Red Cross

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What did this leave out?

• Internal conflicts
• Only common article 3
• Means of conducting war
• Hague and armaments conventions
• Conflicts not controlled by a State
• Terrorism

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Geneva Protocols of 1977

• 2 protocols (additional provisions) to the Geneva
  Conventions
• First Protocol incorporates (and updates) many of
  the provisions of the Hague Conventions
• Second Protocol deals with conflicts not of an
  international character

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Geneva Protocol ISubstantive Provisions

• Relaxation of requirements of uniform
• Exclusion of mercenaries from protection
• Specificity in protection of certain areas from
  attack

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Geneva Protocol IISubstantive Provisions

• Deals with wars not of an international
  character
• More specific protections than those in Common
  Article 3, but not as fulsome as those of the POW
  Convention

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Customary International Humanitarian Law

• The Conventions are directly applicable only
  between parties, BUT
• Customary International Law has developed that
  incorporates many of their provisions, and
• Some subsequent instruments (like the Charter of
  the International Criminal Court) incorporate
  them by reference

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Genocide Convention

• Adopted in 1948
• Prohibits any of the following acts committed
  with intent to destroy, in whole or in party, a
  national, ethnical, racial or religious group, as
  such
• Parties must enact laws punishing genocide.

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Torture Convention

• Adopted by UN in 1984
• Broadly ratified
• Applies during a state of war (art.2(2))

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Torture elements

• Intentional infliction of severe pain or
  suffering
• For specified purposes
• By (or with the consent or acquiesence of) a
  public official

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Human rights law

• Universal Declaration
• Civil and Political Covenant
• Instruments to protect
• Against racial discrimination
• Women
• Children
• And other instruments

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Interplay of Humanitarian Law and Human Rights Law

• Humanitarian law is primary in the field of
  regulating conduct curing conflict

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Limits on Weaponry

• Atomic
• Biological
• Chemical
• Land Mines

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Limits on Personnel

• Child soldiers
• Mercenaries

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Some modern issues

• Bosnia, Kosovo
• Rwanda
• Darfur

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Some more issues

• 9/11
• Abu Gharib
• Saddams photos in the NY Post
• Guantanamo
• Failed car bombers

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Questions for these issues

• Is the conflict covered?
• Is the subject (person) protected?
• What are the terms of the limitation?