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
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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: 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 Lincoln’s 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 crimes:Some 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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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 (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
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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 Convention:Substantive 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 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)
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Hague Convention:Substantive 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 Convention:Substantive 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 Convention:Substantive 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 Convention:Substantive 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 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
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Hague Convention:Is 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 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
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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 Conventions1. Wounded 2. Wounded and shipwrecked at sea3. Prisoners of war4. 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 Conventions:What conflicts covered
Must distinguish between— Full obligations Limited obligations of Common Article
3
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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)
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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
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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)
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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 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)
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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)
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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)
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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)
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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)
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Geneva POW Convention:Supervision
Role of the “Protecting Power” Frequently the ICRC is designated as
the protecting power
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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
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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
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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)
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Geneva Civilian Convention:Supervision
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 I:Substantive 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 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
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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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Some more issues
9/11 Abu Gharib Saddam’s photos in the NY Post Guantanamo [Failed] car bombers
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