Week 17 criminal : Domestic and International Criminal Law Lecture 17: War Crimes and Aggression

International Humanitarian Law (Jus in Bello)

• Definition of IHL: International Humanitarian Law comprises the rules which seek, for humanitarian reasons, to limit the effects of war.

• Primary Functions:

  • It protects persons who are not, or are no longer, participating in hostilities.

  • It restricts the means and methods of warfare used by belligerents.

• Core Principle: The central principle of IHL is the balance between military necessity and humanity.

Origins and Conceptual Framework of War Crimes

• Legal Continuity: International Humanitarian Law (IHL) applies during times of armed conflict. The violation of IHL is criminalized through International Criminal Law (ICL).

• Definition of a War Crime: A war crime is a violation of a rule of IHL that creates direct individual criminal responsibility under international law.

• Scope of Violations: Not all violations of IHL rules necessarily amount to war crimes (reference was made to GC IV $4$).

• Jus in Bello vs. Jus ad Bellum:

  • IHL is synonymous with the laws of war (jus in bello).

  • The law of war crimes does not extend to the legality of initiating war (jus ad bellum).

• Trigger for Application: The application of these laws is triggered by the outbreak of an armed conflict.

• Primary Areas of Law:

  • The Law of Geneva.

  • The Law of The Hague.

The Law of Geneva

• Purpose: The primary purpose of Geneva Law is to protect persons who are not taking part in hostilities or those who are no longer taking part (hors de combat).

• The Four Geneva Conventions ($1949$):

  • GC I: Protects the sick and wounded on land.

  • GC II: Protects the sick, wounded, and shipwrecked at sea.

  • GC III: Regulates the status and protection of prisoners of war (POWs).

  • GC IV: Codified the protection of civilians in armed conflict.

• Grave Breaches: The Conventions included "grave breaches," which required the criminalization of certain specific violations.

• Conflict Types: While the four conventions focused primarily on International Armed Conflict (IAC), Common Article $3$ established minimum standards for Non-International Armed Conflicts (NIAC).

Additional Protocols to the Geneva Conventions ($1977$)

• Context: These were adopted to adapt the law to changing circumstances and new forms of conflict.

• Additional Protocol I:

  • Contains additional rules for the protection of persons in international armed conflict.

  • Includes rules regarding wars of national liberation.

  • Expands the existing list of "grave breaches."

• Additional Protocol II:

  • Establishes comprehensive regulations for non-international armed conflicts.

  • Expands upon the provisions originally set out in Common Article $3$ of the Geneva Conventions.

The Law of The Hague

• Purpose: This body of law prohibits means and methods of warfare that are particularly atrocious or dangerous. It is mainly intended to protect soldiers.

• Key Instruments: The Hague Regulations of $1899$ and $1907$ adopted comprehensive rules regarding permissible methods of warfare.

• Martens Clause: This clause exists as a customary international law provision in the Preamble to Hague Convention II ($1899$). It states:

  • "Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience."

Structure of War Crimes under the Rome Statute (Article 8)

• Article $8(1)$: Deals with the jurisdiction of the court regarding war crimes.

• Article $8(2)(a)$: Addresses grave breaches of the Geneva Conventions (applicable to International Armed Conflict - IAC).

• Article $8(2)(b)$: Addresses other serious violations of the laws and customs of war in IAC.

• Article $8(2)(c)$: Addresses serious violations of Common Article $3$ of the Geneva Conventions in Non-International Armed Conflict (NIAC).

• Article $8(2)(d)$: Defines the threshold for a NIAC.

• Article $8(2)(e)$: Addresses other serious violations of the laws and customs of war in NIAC.

Categories of War Crimes

1. Crimes Against Protected Persons: Includes civilians, prisoners of war, and the wounded or sick. Examples include killing, humiliating treatment, sexual violence, and the deportation or transfer of civilians.

2. Attacks on Prohibited Targets: Includes buildings dedicated to religion, art, sciences, charitable purposes, historic monuments, and hospitals.

3. Attacks Inflicting Excessive Civilian Damage: An example provided is destroying an entire city to eliminate a single arms cache.

4. War Crimes Against Property: Includes the destruction or pillage of property.

5. Prohibited Means of Warfare: Includes weapons causing unnecessary suffering, such as dumdum bullets (which expand on impact).

6. Prohibited Methods of Warfare: Includes the use of starvation as a method of war.

Elements of War Crimes

• Material Element (Actus Reus):

  • Conduct Element: An individual act or omission resulting in a specific IHL violation.

  • Consequence Element: The act must cause actual harm or a risk of harm.

  • Contextual Element (Threshold Requirements):

    • The act must occur during an armed conflict (either IAC or NIAC).

    • There must be a sufficient nexus to the armed conflict.

• Mental Element (Mens Rea):

  • Requires both intent and knowledge regarding the individual act and the contextual element (as per Article $30$ of the ICC Statute).

Threshold Requirement: Existence of an Armed Conflict

• The Tadić Definition: "[A]rmed conflict exists whenever there is resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state."

• Three Scenarios for Conflict:

  • Inter-State violence.

  • Conflict between a government and an armed group.

  • Conflict between two armed groups.

Threshold Requirement: The Nexus

• General Rule: The offense must be "closely" related to the armed conflict.

• Kunarac Case (ICTY Appeals Chamber, 2002, para. 58): The court held that the armed conflict must 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."

• ICC Adherence: The Kunarac approach has been followed by the ICC in:

  • Katanga, ICC Trial Judgement ($2014$), para. $1176$.

  • Bemba, ICC Trial Judgement ($2016$), para. $142$.

  • Ntaganda, ICC Trial Judgement ($2019$), para. $731$.

Specific War Crime: Torture (Article 8(2)(c)(i))

• Definition Context: Applicable in NIAC, involving serious violations of Common Article $3$.

• Protected Persons: Includes persons taking no active part in hostilities, members of armed forces who have laid down their arms, and those hors de combat by sickness, wounds, detention, or any other cause.

• Prohibited Acts Under (i-iv):

  • (i) Violence to life and person, specifically murder of all kinds, mutilation, cruel treatment, and torture.

  • (ii) Outrages upon personal dignity, specifically humiliating and degrading treatment.

  • (iii) Taking of hostages.

  • (iv) Passing sentences/carrying out executions without previous judgment from a regularly constituted court with recognized judicial guarantees.

Crime of Aggression

• Conceptual Distinction: Covers the legality of the initiation of war (jus ad bellum).

• Crime vs. Act of Aggression:

  • Crime of Aggression: Concerns individual criminal responsibility for participating in a prohibited act of aggression.

  • Act of Aggression: Committed by one State against another State (Linked to Article $2(4)$ of the UN Charter).

• Legal Basis: Defined in Article $8\,bis$ of the Rome Statute, adopted at the $2010$ Kampala Review Conference.

Definition and Elements of the Crime of Aggression

• Article 8 bis Rome Statute: The "crime of aggression" means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

• Actus Reus:

  • Conduct: Perpetrator participated in an act of aggression by a State.

  • Contextual Thresholds:

    1. Perpetrator was a political or military leader of the State.

    2. An act of aggression was committed by the State (as defined in GA Resolution $3314$ ($1974$)).

    3. The act amounts to a "manifest violation" of the UN Charter by its character, gravity, and scale.

• Mens Rea:

  • Awareness of the illegal use of armed force.

  • Awareness of the manifest violation of the UN Charter.

ICC Jurisdiction over Aggression

• Specific Regime: Established via Articles $15\,bis$ and $15\,ter$ in the Rome Statute, which differs from the regime applied to the other three core crimes.

• Article 15 bis: Exercise of jurisdiction following a State referral or proprio motu (on the Prosecutor's own initiative).

• Article 15 ter: Exercise of jurisdiction following a Security Council referral.