International Criminal Law Seminar 5 – War Crimes
Reading – Chapter 12 War Crimes
Definition of a war crimes – serious violation of the laws and customs applicable in
an armed conflict which gives rise to criminal responsibility under International
Law
Laws and customs applicable in an armed conflict are subject to International
Humanitarian Law
No requirement for systematic or widespread breach for there to be jurisdiction, a
single breach under International Humanitarian Law is sufficient for prosecution
History of Humanitarian Law
Development of Internal Humanitarian Law spurred by Herni Dunant, a
businessman from Geneva who witnessed the aftermath of the Battle of Solferino
and was shocked by the horrors of wounded soldiers left to die on the battlefield
This led him to urge for action to prevent such incidents, which in turn led to the
creation of the International Committee of the Red Cross which was established in
1863 and the adoption of the first Geneva Convention
Many treaties have since adopted IHL with elements of ‘Hague Law’ and elements
of ‘Geneva Law’
The Hague Conventions – limit the methods and means of Warfare to reduce
unnecessary destruction and suffering
The Geneva Conventions – based upon protecting civilians and those who are
considered ‘non-combatants’
Other treaty developments have strengthened the protection of cultural property,
regulations on what weapons can be used as well as banning child soldiers
These provisions are now seen as part of customary law and so are applicable
even if the state whom the offender is under the jurisdiction of has not ratified the
treaties
Key Principles of Humanitarian Law:
- Non-combatants are to be spared from various forms of harm. This not only
included civilians, but also extends to POW’s and those injured upon the
battlefield
- Combatants can only attack military objectives and must distinguish civilian
objectives
- In attacking military objectives combatants must take steps to avoid, so far as
possible, collateral damage
- Means and methods of war restricted to reduce suffering
IHL is triggered by the outbreak of a war. It is not however concerned with ending
or resolving it as this is of political concerns
Separation of the ius ad bellum (law governing resort to the conflict) and ius in
bello (law governing the conduct during the conflict)
IHL applies equally and uniformly in the conflict to all sides involved regardless of
whether they are at fault or fighting a just cause
Issues with Regulating Warfare
Warfare leads to the reduction is applicable law. Offences which are usually crimes
(such as killing) become legal in such circumstances. However there are often
regulations on this to prevent barbaric acts. International Criminal Law also acts
as a deterrent to prevent serious offenses.
The relationship between war crimes and IHL
Reading – Chapter 12 War Crimes
Definition of a war crimes – serious violation of the laws and customs applicable in
an armed conflict which gives rise to criminal responsibility under International
Law
Laws and customs applicable in an armed conflict are subject to International
Humanitarian Law
No requirement for systematic or widespread breach for there to be jurisdiction, a
single breach under International Humanitarian Law is sufficient for prosecution
History of Humanitarian Law
Development of Internal Humanitarian Law spurred by Herni Dunant, a
businessman from Geneva who witnessed the aftermath of the Battle of Solferino
and was shocked by the horrors of wounded soldiers left to die on the battlefield
This led him to urge for action to prevent such incidents, which in turn led to the
creation of the International Committee of the Red Cross which was established in
1863 and the adoption of the first Geneva Convention
Many treaties have since adopted IHL with elements of ‘Hague Law’ and elements
of ‘Geneva Law’
The Hague Conventions – limit the methods and means of Warfare to reduce
unnecessary destruction and suffering
The Geneva Conventions – based upon protecting civilians and those who are
considered ‘non-combatants’
Other treaty developments have strengthened the protection of cultural property,
regulations on what weapons can be used as well as banning child soldiers
These provisions are now seen as part of customary law and so are applicable
even if the state whom the offender is under the jurisdiction of has not ratified the
treaties
Key Principles of Humanitarian Law:
- Non-combatants are to be spared from various forms of harm. This not only
included civilians, but also extends to POW’s and those injured upon the
battlefield
- Combatants can only attack military objectives and must distinguish civilian
objectives
- In attacking military objectives combatants must take steps to avoid, so far as
possible, collateral damage
- Means and methods of war restricted to reduce suffering
IHL is triggered by the outbreak of a war. It is not however concerned with ending
or resolving it as this is of political concerns
Separation of the ius ad bellum (law governing resort to the conflict) and ius in
bello (law governing the conduct during the conflict)
IHL applies equally and uniformly in the conflict to all sides involved regardless of
whether they are at fault or fighting a just cause
Issues with Regulating Warfare
Warfare leads to the reduction is applicable law. Offences which are usually crimes
(such as killing) become legal in such circumstances. However there are often
regulations on this to prevent barbaric acts. International Criminal Law also acts
as a deterrent to prevent serious offenses.
The relationship between war crimes and IHL
