PUBLIC INTERNATIONAL

LAW

TOPIC: WAR CRIMES

SUBMITTED TO: DR. GHULAM YAZDANI

SUBMITTED BY: ZAINAB QUADRI
IInd YEAR (S/F)
ROLL NO - 72
 ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher, Prof. Dr. Ghulam Yazdani
who gave me the golden opportunity to do this wonderful project on the topic War Crimes,
which helped me in brushing up my research skills. I would also like to thank my parents and
friends who helped me in finalizing the project in the limited time frame.

I am thankful to and fortunate enough to get constant encouragement, support and guidance from
all the teaching staff in, the Faculty of Law in completing my project work. I would also like to
thank all the staff members in the Faculty library for their timely support.

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 CONTENTS
S.NO. PAGE NO.
1. INTRODUCTION 3.
2. WAR CRIMES 4.
3. HISTORY 7.
4. ELEMENTS OF THE CRIME 12.
5. JURISDICTION OVER WAR CRIMES 14.
6. PROSECUTION OF WAR CRIME 15.
7. BIBLIOGRAPHY 17.

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 INTRODUCTION
A war crime is an act that constitutes a serious violation of the laws of war that gives rise to
individual criminal responsibility. Examples of war crimes include intentionally killing civilians
or prisoners, torture, destroying civilian property, taking hostages, perfidy, rape, using child
soldiers, pillaging, declaring that no quarter will be given, and serious violations of the principles
of distinction and proportionality, such as strategic bombing of civilian populations.

The concept of war crimes emerged at the turn of the twentieth century when the body of
customary international law applicable to warfare between sovereign states was codified. Such
codification occurred at the national level, such as with the publication of the Lieber Code in the
United States, and at the international level with the adoption of the treaties during the Hague
Conventions of 1899 and 1907. Moreover, trials in national courts during this period further
helped clarify the law. Following the end of World War II, major developments in the law
occurred. Numerous trials of Axis war criminals established the Nuremberg principles, such as
notion that war crimes constituted crimes defined by international law. Additionally, the Geneva
Conventions in 1949 defined new war crimes and established that states could exercise universal
jurisdiction over such crimes. In the late 20th century and early 21st century, following the
creation of several international courts, additional categories of war crimes applicable to armed
conflicts other than those between states, such as civil wars, were defined.

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 WAR CRIMES
War crimes are serious violations of the rules of customary and treaty law concerning
international humanitarian law that have become accepted as criminal offenses for which there is
individual responsibility. Colloquial definitions of war crime include violations of established
protections of the laws of war, but also include failures to adhere to norms of procedure and rules
of battle, such as attacking those displaying a peaceful flag of truce, or using that same flag as a
ruse to mount an attack on enemy troops. The use of chemical and biological weapons in warfare
are also prohibited by numerous chemical arms control agreements and the Biological Weapons
Convention. Wearing enemy uniforms or civilian clothes to infiltrate enemy lines for espionage
or sabotage missions is a legitimate ruse of war, though fighting in combat or assassinating
individuals, even if they are military targets, behind enemy lines while so disguised is not, as it
constitutes unlawful perfidy. Attacking enemy troops while they are being deployed by way of a
parachute is not a war crime. However, Protocol I, Article 42 of the Geneva Conventions
explicitly forbids attacking parachutists who eject from disabled aircraft and surrendering
parachutists once landed. Article 30 of the 1907 Hague Convention IV - The Laws and Customs
of War on Land explicitly prohibits belligerents to punish enemy spies without previous trial.

The rule of war, also known as the Law of Armed Conflict, permits belligerents to engage in
combat. A war crime occurs when superfluous injury or unnecessary suffering is inflicted upon
an enemy.

War crimes also include such acts as mistreatment of prisoners of war or civilians. War crimes
are sometimes part of instances of mass murder and genocide though these crimes are more
broadly covered under international humanitarian law described as crimes against humanity. In
2008, the U.N. Security Council adopted Resolution 1820, which noted that "rape and other
forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act
with respect to genocide"; see also war rape. In 2016, the International Criminal Court convicted

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someone of sexual violence for the first time; specifically, they added rape to a war crimes
conviction of Congo Vice President Jean-Pierre Bemba Gombo.

War crimes also included deliberate attacks on citizens and property of neutral states as they fall
under the category of non-combatants, as at the Japanese attack on Pearl Harbor. As the attack on
Pearl Harbor happened without a declaration of war, without explicit warning, and went out of
proportion, all military and civilian casualties at the harbor were officially non-combatants, the
military were not ready for face up to the attack and the attack was declared by the Tokyo Trials
to go beyond justification of military necessity and therefore constituted a war crime.

War crimes are significant in international humanitarian law because it is an area where
international tribunals such as the Nuremberg Trials and Tokyo Trials have been convened.
Recent examples are the International Criminal Tribunal for the Former Yugoslavia and the
International Criminal Tribunal for Rwanda, which were established by the UN Security Council
acting under Chapter VIII of the UN Charter.

Under the Nuremberg Principles, war crimes are different from crimes against peace which is
planning, preparing, initiating, or waging a war of aggression, or a war in violation of
international treaties, agreements, or assurances. Because the definition of a state of "war" may
be debated, the term "war crime" itself has seen different usage under different systems of
international and military law. It has some degree of application outside of what some may
consider to be a state of "war", but in areas where conflicts persist enough to constitute social
instability.

The legalities of war have sometimes been accused of containing favoritism toward the winners
("Victor's justice"), as some controversies have not been ruled as war crimes. Some examples

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include the Allies' destruction of Axis cities during World War II, such as the firebombing of
Dresden, the indiscriminate bombings started by Churchill, the Operation Meetinghouse raid on
Tokyo (the most destructive single bombing raid in history) and the atomic bombings of
Hiroshima and Nagasaki; and the mass killing of Biharies by Kader Siddique and Mukti Bahini
before or after victory of Bangladesh Liberation War in Bangladesh between 1971 and 1972. In
regard to the strategic bombing during World War II, it should be noticed that at the time, there
was no international treaty or instrument protecting a civilian population specifically from attack
by aircraft, therefore the aerial attacks on civilians were not officially war crimes. Because of
this, the Allies at the trials in Nuremberg and Tokyo never prosecuted the Germans, including
Luftwaffe commander-in-chief Hermann Göring, for the bombing raids on Warsaw, Rotterdam,
and British cities during the Blitz as well as the indiscriminate attacks on Allied cities with V-1
flying bombs and V-2 rockets nor the Japanese for the aerial attacks on crowded Chinese cities.
Although there are no treaties specific to aerial warfare, Protocol 1, Article 51 of the Geneva
Conventions explicitly prohibits the bombardment of cities where civilian population might be
concentrated regardless of any method. (see Aerial bombardment and international law).

Controversy aroused when the Allies re-designated German POWs (under the protection of the
1929 Geneva Convention on Prisoners of War) as Disarmed Enemy Forces (allegedly
unprotected by the 1929 Geneva Convention on Prisoners of War), many of which then were
used for forced labor such as clearing minefields. By December 1945, six months after the war
had ended, it was estimated by French authorities that 2,000 German prisoners were still being
killed or maimed each month in mine-clearing accidents. The wording of the 1949 Third Geneva
Convention was intentionally altered from that of the 1929 convention so that soldiers who "fall
into the power" following surrender or mass capitulation of an enemy are now protected as well
as those taken prisoner in the course of fighting.

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 HISTORY
Early examples
The trial of Peter von Hagenbach by an ad hoc tribunal of the Holy Roman Empire in 1474 was
the first "international" war crimes trial, and also of command responsibility. He was convicted
and beheaded for crimes that "he as a knight was deemed to have a duty to prevent", although he
had argued that he was "just following orders".

In 1865, Henry Wirz, a Confederate States Army officer, was held accountable by a military
tribunal and hanged for the appalling conditions at Andersonville Prison, where many Union
prisoners of war died during the American Civil War.

Hague Conventions
The Hague Conventions were international treaties negotiated at the First and Second Peace
Conferences at The Hague, Netherlands, in 1899 and 1907, respectively, and were, along with
the Geneva Conventions, among the first formal statements of the laws of war and war crimes in
the nascent body of secular international law.

Geneva Conventions
The Geneva Conventions are four related treaties adopted and continuously expanded from 1864
to 1949 that represent a legal basis and framework for the conduct of war under international
law. Every single member state of the United Nations has currently ratified the conventions,
which are universally accepted as customary international law, applicable to every situation of
armed conflict in the world. However, the Additional Protocols to the Geneva Conventions
adopted in 1977 containing the most pertinent, detailed and virulent protections of international
humanitarian law for persons and objects in modern warfare are still not ratified by a number of
States continuously engaged in armed conflicts, namely the United States, Israel, India, Pakistan,

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Iraq, Iran, and others. Accordingly, states retain different codes and values with regard to
wartime conduct. Some signatories have routinely violated the Geneva Conventions in a way
which either uses the ambiguities of law or political maneuvering to sidestep the laws'
formalities and principles.

Three conventions were revised and expanded with the fourth one added in 1949 :

 First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field (Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field was adopted in 1864, significantly
revised and replaced by the 1906 version, the 1929 version, and later the First Geneva
Convention of 1949).
 Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea (Convention for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea was
adopted in 1906, significantly revised and replaced by the Second Geneva Convention of
1949).
 Third Geneva Convention relative to the Treatment of Prisoners of War (Convention
relative to the Treatment of Prisoners of War was adopted in 1929, significantly revised
and replaced by the Third Geneva Convention of 1949).
 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War
(first adopted in 1949, based on parts of the 1907 Hague Convention IV).

Two Additional Protocols were adopted in 1977 with the third one added in 2005, completing
and updating the Geneva Conventions:

 Protocol I (1977) relating to the Protection of Victims of International Armed Conflicts.

 Protocol II (1977) relating to the Protection of Victims of Non-International Armed
Conflicts.
 Protocol III (2005) relating to the Adoption of an Additional Distinctive Emblem.

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Leipzig War Crimes Trial
A small number of German military personnel of the First World War were tried in 1921 by the
German Supreme Court for alleged war crimes.

London Charter / Nuremberg Trials 1945

The modern concept of war crime was further developed under the auspices of the Nuremberg
Trials based on the definition in the London Charter that was published on August 8, 1945.
Along with war crimes the charter also defined crimes against peace and crimes against
humanity, which are often committed during wars and in concert with war crimes.

International Military Tribunal for the Far East 1946

Also known as the Tokyo Trial, the Tokyo War Crimes Tribunal or simply as the Tribunal, it
was convened on May 3, 1946 to try the leaders of the Empire of Japan for three types of crimes:
"Class A" (crimes against peace), "Class B" (war crimes), and "Class C" (crimes against
humanity), committed during World War II.

International Criminal Court 2002

On July 1, 2002, the International Criminal Court, a treaty-based court located in The Hague,
came into being for the prosecution of war crimes committed on or after that date. Several
nations, most notably the United States, China, Russia, and Israel, have criticized the court. The
United States still participates as an observer. Article 12 of the Rome Statute provides
jurisdiction over the citizens of non-contracting states in the event that they are accused of
committing crimes in the territory of one of the state parties.

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War crimes are defined in the statute that established the International Criminal Court, which
includes:

1. Grave breaches of the Geneva Conventions, such as:

a. Willful killing, or causing great suffering or serious injury to body or health
b. Torture or inhumane treatment
c. Unlawful wanton destruction or appropriation of property
d. Forcing a prisoner of war to serve in the forces of a hostile power
e. Depriving a prisoner of war of a fair trial
f. Unlawful deportation, confinement or transfer
g. Taking hostages

2. The following acts as part of an international conflict:

a. Directing attacks against civilians
b. Directing attacks against humanitarian workers or UN peacekeepers
c. Killing a surrendered combatant
d. Misusing a flag of truce
e. Settlement of occupied territory
f. Deportation of inhabitants of occupied territory
g. Using poison weapons
h. Using civilians as shields
i. Using child soldiers
j. Firing upon a Combat Medic with clear insignia.

3. The following acts as part of a non-international conflict:

a. Murder, cruel or degrading treatment and torture
b. Directing attacks against civilians, humanitarian workers or UN peacekeepers
c. Taking hostages
d. Summary execution
e. Pillage
f. Rape, sexual slavery, forced prostitution or forced pregnancy

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However the court only has jurisdiction over these crimes where they are "part of a plan or
policy or as part of a large-scale commission of such crimes".

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 ELEMENTS OF THE 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 categorises 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.

From a more substantive perspective, war crimes could be divided into:

a) war crimes against persons requiring particular protection;

b) war crimes against those providing humanitarian assistance and peacekeeping operations;
c) war crimes against property and other rights;
d) prohibited methods of warfare; and
e) prohibited means of warfare.

Some examples of prohibited acts include: murder; mutilation, cruel treatment and torture; taking
of hostages; intentionally directing attacks against the civilian population; intentionally directing

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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 groups or using them to participate actively in hostilities.

War crimes contain two main elements:

 A contextual element: “the conduct took place in the context of and was associated with
an international/non-international armed conflict”;
 A mental element: intent and knowledge both with regards to the individual act and the
contextual element.

In contrast to genocide and crimes against humanity, war crimes can be committed against a
diversity of victims, either combatants or non-combatants, depending on the type of crime. In
international armed conflicts, victims include wounded and sick members of armed forces in the
field and at sea, prisoners of war and civilian persons. In the case of non-international armed
conflicts, protection is afforded to persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and those placed ‘hors de combat’ by
sickness, wounds, detention, or any other cause. In both types of conflicts protection is also
afforded to medical and religious personnel, humanitarian workers and civil defence staff.

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 JURISDICTION OVER WAR CRIMES
States have the right to vest universal jurisdiction in their national courts over
war crimes.
The right of States to vest universal jurisdiction in their national courts for war crimes is
supported extensively by national legislation. There have also been a number of cases of
suspected war criminals being tried by national courts on the basis of universal jurisdiction.
Over the last decade, several persons have been tried by national courts for war crimes
committed in non-international armed conflicts on the basis of universal jurisdiction. It is
significant that the States of nationality of the accused did not object to the exercise of
universal jurisdiction in these cases. Several military manuals further support the rule that war
crimes jurisdiction may be established on the basis of the principle of universal jurisdiction.

The right of States to vest universal jurisdiction in their national courts for war crimes is also
supported by treaty law. The Second Protocol to the Hague Convention for the Protection of
Cultural Property states that it does not affect “the exercise of jurisdiction under customary
international law”, which was intended by delegates at the negotiation of the Protocol to refer
to the right of States to vest universal jurisdiction in their national courts for war crimes. The
Genocide Convention, which refers explicitly to territorial jurisdiction, has been interpreted as
not prohibiting the application of the principle of universal jurisdiction to genocide. While the
Statute of the International Criminal Court does not oblige States to establish universal
jurisdiction over the war crimes it lists, several States have incorporated the list of war crimes
contained in the Statute in their national legislation and vested jurisdiction in their courts to
prosecute persons suspected of having committed such war crimes on the basis of the principle
of universal jurisdiction.

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 PROSECUTION OF WAR CRIME
States must investigate war crimes allegedly committed by their nationals or
armed forces, or on their territory, and, if appropriate, prosecute the suspects.
They must also investigate other war crimes over which they have jurisdiction
and, if appropriate, prosecute the suspects.
The Geneva Conventions require States to search for persons alleged to have committed, or
ordered to have committed, grave breaches and to try or extradite them. The obligation to
investigate and prosecute persons alleged to have committed crimes under international law is
found in a number of treaties that apply to acts committed in both international and non-
international armed conflicts. The preamble to the Statute of the International Criminal Court
recalls “the duty of every State to exercise its criminal jurisdiction over those responsible for
international crimes”.

The rule that States must investigate war crimes and prosecute the suspects is set forth in
numerous military manuals, with respect to grave breaches, but also more broadly with respect to
war crimes in general. Most States implement the obligation to investigate war crimes and
prosecute the suspects by providing jurisdiction for such crimes in their national legislation, and
there have been numerous national investigations and prosecutions of suspected war criminals. It
is not possible, however, to determine whether this practice was pursuant to an obligation or
merely a right. An obligation to investigate and prosecute is, however, stated explicitly in a
variety of other State practice, such as agreements and official statements.

In addition, the obligation to investigate war crimes and prosecute the suspects has been
reaffirmed on several occasions by the UN Security Council in relation to attacks on
peacekeeping personnel and in relation to crimes committed in the non-international armed
conflicts in Afghanistan, Burundi, Democratic Republic of the Congo, Kosovo and Rwanda. In
1946, in its first session, the UN General Assembly recommended that all States, including those
not members of the United Nations, arrest persons who allegedly committed war crimes in the

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Second World War and send them back for prosecution to the State where the crimes were
committed. Since then, the UN General Assembly has, on several occasions, stressed the
obligation of States to take measures to ensure the investigation of war crimes and crimes against
humanity and the punishment of the perpetrators. With respect to sexual violence in situations of
armed conflict, the UN General Assembly has adopted several resolutions without a vote calling
upon States to strengthen mechanisms to investigate and punish all those responsible for sexual
violence and to bring the perpetrators to justice.

The UN Commission on Human Rights has adopted a number of resolutions, most of them
without a vote, requiring the investigation and prosecution of persons suspected of having
committed violations of international humanitarian law in the context of the conflicts in Burundi,
Chechnya, Rwanda, Sierra Leone, Sudan and the former Yugoslavia. In a resolution on impunity
adopted without a vote in 2002, the Commission recognized that perpetrators of war crimes
should be prosecuted or extradited.

In relation to crimes committed in non-international armed conflicts, a number of States have

issued amnesties for war crimes, but these have often been found to be unlawful by their own
courts or by regional courts and were criticized by the international community. There is,
however, sufficient practice, as outlined above, to establish the obligation under customary
international law to investigate war crimes allegedly committed in non-international armed
conflicts and to prosecute the suspects if appropriate.

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 BIBLIOGRAPHY
WEBSITES REFERRED:
 www.scconline.com
 www.legalservicesindia.com

 thelawstudy.blogspot.com

 alexis.org.in

 www.lawctopus.com

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