International Law Unit 10: War Crimes Prof. Fred Morrison Fall 2005.

International Law Unit 10: War Crimes

Prof. Fred MorrisonFall 2005

Fall 2005 War Crimes 2

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


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

War Crimes: I. History and Introduction


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


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)


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

The American Civil War (1861-1865) The role of Francis Lieber Lincoln’s General Order No. 100:

“Instruction for the Government of the Armies of the United States in the Field”


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.”


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


War crimes: Genocide

Genocide Convention, 1948 Really a human rights convention;

applies also outside of the war context


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


War crimes: Limiting weapons

Small explosive projectiles Atomic Biological Chemical Land Mines Child soldiers Mercenaries


War crimes trials

Andersonville, 1865 The Treaty of Versailles

Provisions about the Kaiser The Leipzig trials

Nuremberg and Tokyo, 1946 Lieut. Calley


War crimes trials: recent

Yugoslav tribunal Rwandan tribunal Sierra Leone tribunal International Criminal Court

Referral of charges on Dafur


War crimes:Some important influences

Changes in weaponry Greater destructive capability

Changes in civilian involvement “Total war”

Changes in communication The “CNN effect”


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

II. Treaties & Customary Law


Treaties and Customary Law

Treaties Established by signature and

ratification (or accession or acceptance)

Binding only on parties Binding only in their own terms


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


Treaties and Customary Law

Customary Law Created by long practice accepted as

law Binding on all States Less precise statement of rules


Types of treaties

1. Classic war crimes treaties Hague Conventions and Regulations Geneva Conventions Geneva Protocols

2. Some special treaties Genocide Torture


Types of Treaties

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


Types of treaties

4. Relationship to general human rights treaties:

Relationship of “human rights law” to “humanitarian law”


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?


Questions to ask about treaties (cont’d)

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


Substantive Treaties: Part 1Classic War Crimes Treaties

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


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


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


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”


Hague Convention:Substantive provisions

Primarily directed at means of conducting armed conflict Protection of POWs and of civilians

has been superseded by other agreements


Hague Convention:Substantive 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)



Some provisions are quaint: Provisions about parole release

(R.art.9) Officers continue to be paid (but by

the captor(!!)) (R.art.17)



The Martens clause:

The right of belligerents to adopt means of injuring the enemy

is not unlimited

(Reg.art.22)


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



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)



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)


Hague Convention:Remedial 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


Hague Convention:Is it customary law?

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


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?


A trip along the Rhine:From 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


Geneva Conventions

Based on principle of protecting classes of individuals

They introduce the beginnings of limited individual responsibility


Geneva Conventions of 1949

4 Geneva Conventions1. Wounded 2. Wounded and shipwrecked at sea3. Prisoners of war4. Civilians

Some provisions are the same in all 4

Common articles 1-3


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


Geneva Conventions:What conflicts covered

Must distinguish between— Full obligations Limited obligations of Common Article

3


Geneva Conventions:Full 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)


Geneva Conventions:To 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


Geneva POW Convention:To 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)


Limited obligations in non-international conflict

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


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)


Geneva POW Convention:Substantive 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)


Geneva POW Convention:Specific 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)


Geneva POW Convention:Specific Obligations

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

(arts. 78-81)


Geneva POW Convention:Specific Obligations (cont’d)

Discipline [not to exceed 30 days] (arts. 82-98)

Juridical Proceedings (arts. 99-108) Release (arts. 109-119) Information Bureaus, etc., (arts.

120-125)


Geneva POW Convention:Enforcement 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)


Geneva POW Convention:Supervision

Role of the “Protecting Power” Frequently the ICRC is designated as

the protecting power


Geneva Civilian Convention:To 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


Geneva Civilian Convention:Substantive 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


Geneva Civilian Convention:Enforcement

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


Geneva Civilian Convention:Supervision

Protecting Power provides supervision Frequently this is the Red Cross


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


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”


Geneva Protocol I:Substantive Provisions

Relaxation of requirements of uniform

Exclusion of “mercenaries” from protection

Specificity in protection of certain areas from attack


Geneva Protocol II:Substantive 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


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


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.


Torture Convention

Adopted by UN in 1984 Broadly ratified Applies during a state of war

(art.2(2))


Torture elements

Intentional infliction of severe pain or suffering

For specified purposes By (or with the consent or

acquiesence of) a public official


Human rights law

Universal Declaration Civil and Political Covenant Instruments to protect

Against racial discrimination Women Children

And other instruments


Interplay of Humanitarian Law and Human Rights Law

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


Limits on Weaponry

Atomic Biological Chemical Land Mines


Limits on Personnel

Child soldiers Mercenaries


Some modern issues

Bosnia, Kosovo Rwanda Darfur


Some more issues

9/11 Abu Gharib Saddam’s photos in the NY Post Guantanamo [Failed] car bombers


Questions for these issues

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

limitation?

International Law Unit 10: War Crimes Prof. Fred Morrison Fall 2005.

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Transcript of International Law Unit 10: War Crimes Prof. Fred Morrison Fall 2005.