Practice Relating to Rule 156. Definition of War Crimes
Note. For practice concerning specific war crimes, see the relevant rules. For example, for practice concerning torture as a war crime, see Rule 90.
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IMT Charter (Nuremberg)
Article 6(b) of the 1945 IMT Charter (Nuremberg) established jurisdiction of the International Military Tribunal for Germany over, inter alia, “war crimes: namely, violations of the laws or customs of war”. 
Charter of the International Military Tribunal for Germany, concluded by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Government of the Union of Soviet Socialist Republics, acting in the interests of all the United Nations and by their representatives duly authorized thereto, annexed to the London Agreement, London, 8 August 1945, Article 6(b).

Additional Protocol I
Article 85(5) of the 1977 Additional Protocol I provides that grave breaches of the 1949 Geneva Conventions and of the Protocol “shall be regarded as war crimes”. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 85(5). Article 85 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.44, 30 May 1977, p. 291.

ICC Statute
Article 8(2) of the 1998 ICC Statute provides:
For the purpose of this Statute, “war crimes” means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: …
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: …
(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against 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: …

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: … 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 8(2).

Article 30(1) of the 1998 ICC Statute provides:
Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 30(1).

Statute of the Special Court for Sierra Leone
Article 1(1) of the 2002 Statute of the Special Court for Sierra Leone provides:
The Special Court shall, except as provided in subparagraph (2), have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone. 
Statute of the Special Court for Sierra Leone, annexed to the 2002 Agreement on the Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/2002/246, 8 March 2002, p. 29.

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Report of the Commission on Responsibility
Based on several documents supplying evidence of outrages committed during the First World War, the 1919 Report of the Commission on Responsibility lists violations of the laws and customs of war which should be subject to criminal prosecution. At the end of the list, it is stated: “The Commission desires to draw attention to the fact that the offences enumerated … are not regarded as complete and exhaustive; to these such additions can from time to time be made as may seem necessary.” 
Report submitted to the Preliminary Conference of Versailles by the Commission on Responsibility of the Authors of the War and on Enforcement of Penalties, Versailles, 29 March 1919.

Allied Control Council Law No. 10
Article II of the 1945 Allied Control Council Law No. 10 defines war crimes as:
Atrocities or offenses against persons or property constituting violations of the laws or customs of war, including but not limited to, murder, ill treatment or deportation to slave labour or any other purpose, of civilian population from occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity. 
Allied Control Council Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, enacted by the Allied Control Council of Germany, composed of the United Kingdom of Great Britain and Northern Ireland, France, the United States of America and the Union of Soviet Socialist Republics, Berlin, 20 December 1945, Article II.

IMT Charter (Tokyo)
Article 5(b) of the 1946 IMT Charter (Tokyo) gave the Tribunal jurisdiction over, inter alia, “Conventional War Crimes: Namely, violations of the laws or customs of war”. 
Charter of the International Military Tribunal for the Far East, approved by an Executive Order, General Douglas MacArthur, Supreme Commander for the Allied Powers in Japan, Tokyo, 19 January 1946, amended on 26 April 1946, Article 5(b).

ILC Draft Code of Offences against the Peace and Security of Mankind (1954)
Article 2(12) of the 1954 ILC Draft Code of Offences against the Peace and Security of Mankind states: “The following acts are offences against the peace and security of mankind: … acts in violation of the laws and customs of war”. 
Draft Code of Offences against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its sixth session, UN Doc. A/2693, 1954, Article 2(12).

ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 22(2) of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind provides: “For the purposes of this Code, an exceptionally serious war crime is an exceptionally serious violation of principles and rules of international law applicable in armed conflict.” 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-third session, 29 April–19 July 1991, UN Doc. A/46/10, 1991, Article 22(2).

ICTY Statute
Article 1 of the 1993 ICTY Statute provides:
The [ICTY] shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 1.

Article 2 of the 1993 ICTY Statute, entitled “Grave breaches of the Geneva Conventions of 1949”, provides that the Tribunal
shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention: … 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 2.

Article 3 of the 1993 ICTY Statute, entitled “Violations of the laws or customs of war”, provides that the Tribunal “shall have the power to prosecute persons violating the laws or customs of war”. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 3.

ICTR Statute
Article 1 of the 1994 ICTR Statute provides:
The International Tribunal for Rwanda shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, in accordance with the provisions of the present Statute. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 1.

Article 4 of the 1994 ICTR Statute, entitled “Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II”, provides that the Tribunal “shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions … and of Additional Protocol II thereto”. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 4.

UNTAET Regulation No. 2000/15
The UNTAET Regulation No. 2000/15 establishes panels with exclusive jurisdiction over serious criminal offences, including war crimes. Section 6(1) provides:
For the purposes of the present regulation, “war crimes” means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: …
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: …
(c) In the case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against 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: …

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: … 
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, Dili, 6 June 2000, Section 6(1).

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Argentina
Argentina’s Law of War Manual (1989) states that “grave breaches are considered as war crimes” and provides a list of grave breaches. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 8.03.

Australia
Australia’s Defence Force Manual (1994) states:
War crimes are illegal actions relating to the inception or conduct of armed conflict. They may be viewed as any violation of LOAC (either customary or treaty law which is committed by any person). 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1312; see also Commanders’ Guide (1994), § 1302.

The manual adds:
War crimes which are directed against protected persons or facilities under the Geneva Conventions or the Additional Protocols fall within two main categories. The more serious violations are termed grave breaches and the less serious are simple breaches. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1314; see also Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1304.

Australia’s LOAC Manual (2006) states:
13.24 The Geneva Conventions introduced a new concept, that of “grave breaches”. These are war crimes of such seriousness as to invoke universal jurisdiction … [The 1977 Additional Protocol I] extended the definition of grave breaches. Other serious offences against “the laws and customs of war” whether proscribed by treaty or by customary law remain war crimes and are punishable as such.

13.27 Aside from grave breaches of the Conventions and Protocols, other serious violations of the LOAC constitute war crimes and are punishable as such. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 13.24 and 13.27.

The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) defines as a war crime “any violation of the laws of war … or of the laws of the belligerents, during or on the occasion of war”. However, it criticises this definition, saying that “it includes not only crimes against peace and against humanity … and violations of the laws of war as such … but also violations of the internal legislation of the adversary” which, according to the manual, do not necessarily merit being considered as war crimes. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 54.

The manual states, therefore:
It would be preferable to restrict the term “war crime” to violations that cause outrage to the public conscience owing to their “brutality”, their “inhuman character” or the wilful refusal to recognize rights of property having no connection with military necessity”. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 55.

Under the heading “Grave breaches of the Geneva Conventions”, the manual lists a number of war crimes which are clearly defined and listed as “grave breaches” in the Conventions. It refers to Articles 50–51 of the 1949 Geneva Convention I, Article 51 of the 1949 Geneva Convention II, Article 130 of the 1949 Geneva Convention III and Article 147 of the 1949 Geneva Convention IV, as well as to Articles 11, 85 and 86 of the 1977 Additional Protocol I. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 55.

Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “Grave breaches of the law of war are considered to be war crimes”. 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 28; see also Part I bis, p. 67.

Cameroon
Cameroon’s Instructor’s Manual (2006) states: “Infractions of the Law of Armed Conflict and International Humanitarian Law are considered as war crimes. They are subject to criminal sanctions.” 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 295.

The manual also states with reference to the 1998 ICC Statute:
… one understands war crimes as [including]:
Grave breaches of the Geneva Conventions of 12 August 1949 [and also] … the many infractions [of IHL] … that may be committed during international armed conflicts as well as non-international armed conflicts according to Article 3 Common to the Geneva Conventions. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 237, § 551; see also pp. 295–296, § 661.

Canada
Canada’s LOAC Manual (1999) explains that:
Broadly speaking, “war crimes” include all violations of International Law in relation to an armed conflict for which individuals may be prosecuted and punished, including crimes against peace, crimes against humanity and genocide. In the narrow, technical sense “war crimes” are violations of the laws and customs of war. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-1, § 2.

The manual further states:
The term “war crime” in its narrower meaning is a technical expression for a violation of the laws or customs of war. This includes:
a. grave breaches of the Geneva Conventions or Additional Protocols to the Geneva Conventions;
b. violations of the Hague Conventions; and
c. violations of the customs of war. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-2, § 8.

At the end of the section dealing with “War crimes in the narrow sense”, which lists “Grave breaches of the 1949 Geneva Conventions”, “Grave breaches of Additional Protocol I” and “Violations of [the] Hague Conventions and customary law”, the manual also states: “The fact that a particular act is not listed here as a war crime does not preclude its being treated as a war crime if it is a violation of the laws and customs of war (LOAC).” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-4, § 22.

With respect to non-international armed conflicts, the manual notes: “When [the 1977 Additional Protocol II] was adopted, States refused to make violations of its provisions criminal offences.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-5, § 42.

The manual adds:
Today, however, many provisions of [the 1977 Additional Protocol II] are nevertheless recognized under customary International Law as prohibitions that entail individual criminal responsibility when breaches are committed during internal armed conflicts. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-5, § 43.

The manual also adds: “Violations of many provisions of [the 1977 Additional Protocol II] committed by individual members of a party to an internal conflict are thus criminal offences under International Law.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-5, § 44.

Canada’s LOAC Manual (2001) states in its chapter on “War crimes, individual criminal liability and command responsibility”:
1602. General
1. The term “war crime” may be considered in a broad sense as well as in narrow, technical sense. Broadly speaking “war crimes” include all violations of International Law in relation to an armed conflict for which individuals may be prosecuted and punished including crimes against peace, crimes against humanity and genocide. In the narrow, technical sense “war crimes” are violations of the laws and customs of war.

1606. Definition
1. The term “war crime” in its narrower meaning is a technical expression for a violation of the laws or customs of war. This includes:
a. grave breaches of the Geneva Convention[s] or Additional Protocols to the Geneva Conventions;
b. violations of the Hague Conventions; and
c. violations of the customs of war. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 1602 and 1606.

At the end of the section dealing with “War crimes in the narrow sense”, which lists “Grave breaches of the 1949 Geneva Conventions”, “Grave breaches of Additional Protocol I” and “Violations of [the] Hague Conventions and customary law”, the manual also states: “The fact that a particular act is not listed here as a war crime does not preclude its being treated as a war crime if it is a violation of the laws and customs of war (LOAC).”  
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1609.4.

In its chapter on non-international armed conflicts, the manual states:
1725. Breaches of Protocol II
1. When [the 1977 Additional Protocol II] was adopted, states refused to make violations of its provisions regarding criminal offences. Certain nations were reluctant to allow other states to interfere in their internal affairs by way of trials for war crimes alleged to have taken place in their national territory.
2. Today, however, many provisions of [the 1977 Additional Protocol II] are nevertheless recognized under customary International Law as prohibitions that entail individual criminal responsibility when breaches are committed during internal armed conflicts.
3. Violations of many provisions of [the 1977 Additional Protocol II] committed by individual members of a party to an internal conflict are thus criminal offences under International Law. Such crimes may be tried by international tribunals such as the International Criminal Tribunal for Rwanda. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1725.

Chad
Chad’s Instructor’s Manual (2006) states: “Grave breaches of the Geneva Conventions and Additional Protocol I are considered war crimes.” 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 110.

Colombia
Colombia’s Basic Military Manual (1995) provides: “Grave breaches of IHL committed by the parties to the conflict constitute war crimes or crimes against humanity.” 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 31.

Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
I.1 Basic rules

[Basic Rule No. 12]
Endeavour to prevent any violation of these commands, report to your superior violations committed. Every violation of the law of war is punishable.

Lesson 4. Breaches and repression of violations of IHL

The texts on the law of war distinguish two categories of breaches in the case of violations of the rules of IHL:
- Grave violations or grave breaches, called war crimes;
- Other violations. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre I: Instruction de base, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 21 and 29.

In Book II (Instruction of non-commissioned officers and officers), the Teaching Manual provides:
Lesson 4. Breaches and responsibilities

I.1.1. War crimes
They are grave violations of IHL mentioned in the Geneva Conventions and their Additional Protocols, committed during armed conflict. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre II: Instruction du gradé et du cadre, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 28.

Croatia
Croatia’s LOAC Compendium (1991), in a provision entitled “Grave Breaches (War Crimes)”, contains a list of punishable acts (“among others”). 
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 56.

Ecuador
Ecuador’s Naval Manual (1989) provides:
War crimes are defined as those acts which violate the law of armed conflict, that is, the rules established by customary and conventional international law regulating the conduct of warfare, and which have been generally recognized as war crimes. Acts constituting war crimes may be committed by the armed forces of a belligerent or by individuals belonging to the civilian population. 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 6.2.5.

France
France’s LOAC Summary Note (1992) gives a detailed list of war crimes and provides: “Grave breaches of the law of war are war crimes.” 
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 3.4.

France’s LOAC Teaching Note (2000) states: “very grave breach of the rules of the law of armed conflicts represents a war crime.” 
France, Fiche didactique relative au droit des conflits armés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, p. 7.

France’s LOAC Manual (2001), under the heading “War crimes”, cites, inter alia, Article 212(1) of the French Penal Code (which provides for life imprisonment for such acts as deportation, enslavement, massive and systematic summary executions, abductions of persons followed by their disappearance, torture and inhuman acts) and Article 75 of the 1977 Additional Protocol I. It also refers to Articles 41 and 56 of the 1907 Hague Regulations, Articles 3, 49 and 50 of the 1949 Geneva Convention I, Articles 3, 50 and 51 of the 1949 Geneva Convention II, Articles 3, 80–88, 105–108, 129 and 130 of the 1949 Geneva Convention III, Articles 3, 146 and 147 of the 1949 Geneva Convention IV and Articles 11, 75 and 85 of the 1977 Additional Protocol I. The manual further states:
Article 8 of the [1998 ICC Statute] defines as war crimes “grave breaches of the Geneva Conventions of 12 August 1949, [committed] against persons or property protected under the provisions of the relevant Geneva Convention” and “grave breaches of the laws and customs of war in an international or non-international armed conflict”. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, pp. 44–46.

Germany
Germany’s Military Manual (1992) provides a list of grave breaches (“in particular”) of IHL. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 1209.

Germany’s Soldiers’ Manual (2006) states: “Grave breaches of international humanitarian law can be punished as war crimes.” 
Germany, Druckschrift Einsatz Nr. 03, Humanitäres Völkerrecht in bewaffneten Konflikten – Grundsätze, Erarbeitet nach ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, DSK SF009320187, Bundesministerium der Verteidigung, R II 3, August 2006, p. 2.

Hungary
Hungary’s Military Manual (1992), in a provision entitled “Grave Breaches (War Crimes)”, contains a list of punishable acts (“among others”). 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 90.

Israel
Israel’s Manual on the Laws of War (1998) states: “The violation of the laws and customs of war is termed a ‘war crime’.” 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 64.

Israel’s Manual on the Rules of Warfare (2006) states:
Severe breaches of the rules and customs of war constitute a “war crime” and the perpetrators thereof may be put on trial and very severely punished.
Any departure from the rules of warfare may be a “war crime”. Acts committed under the rules of warfare do not constitute war crimes and those who commit them are not to be put on trial. Thus, a soldier shooting and killing an enemy soldier is not considered to be a murderer. The law intervenes when the combatant oversteps the bounds of conduct prescribed by the rules of war … The rules of warfare are designed to set clear distinctions between legitimate and prohibited targets, between civilian and combatant, and between the fighting man and one who is no longer capable of fighting and thus poses no danger. When these distinctions are breached, the law is required to act with all severity, since the rules of warfare are the “last bulwark” of basic humanitarianism in situations in which the mark of humanity is so easily lost. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 41.

The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Italy’s IHL Manual (1991) does not define war crimes as such, but includes a non-exhaustive list of acts that are considered war crimes and/or grave breaches under national and international law. 
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 84.

In the section on “Grave breaches of the international Conventions and the Protocols additional thereto”, the manual lists, inter alia, “the violation of fundamental guarantees of respect and protection of the person”. 
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 85.

Mexico
Mexico’s IHL Guidelines (2009) states: “War crimes include … any … grave breach of the four Geneva Conventions of 12 August 1949.” 
Mexico, Cartilla de Derecho Internacional Humanitario, Ministry of National Defence, 2009, § 5.

Netherlands
According to the Military Manual (1993) of the Netherlands, a war crime is a violation of the rules of the law of war. The manual uses the term “war crime” both in a broad and in a narrow sense. It explains that war crimes in the broad sense include violations of the laws and customs of war, crimes against peace and crimes against humanity. In the narrow sense, they are defined as violations of the laws and customs of war. As to the difference between war crimes and crimes against humanity, the manual states that crimes against humanity can also be committed outside the context of armed conflict and can be directed against one’s own population. Furthermore, the manual recalls that the 1949 Geneva Conventions and the 1977 Additional Protocol I provide for the distinction between (ordinary) breaches and grave breaches. As to the latter, it states that they must be subject to criminal sanction. According to the manual, grave breaches of treaty law are violations of the most fundamental rules of IHL. In addition, there are ordinary breaches. These concern acts which constitute grave breaches but which lack the intent of the actor or cases in which neither death nor serious bodily injuries are caus ed. As other examples of such ordinary breaches, the manual lists cases of appropriation of property of prisoners of war, insulting internees and unnecessary damaging of civilian objects. According to the manual, war crimes can also take place by negligence. Lastly, the manual refers to Article 86 of the 1977 Additional Protocol I, noting the duty to repress grave breaches and to take measures necessary to suppress all other breaches which result from a failure to act when under a duty to do so.  
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, pp. IX-3/IX-6.

The Military Manual (2005) of the Netherlands states: “Those who engage in acts of war without being entitled to do so (known as ‘unlawful combatants’) thereby commit a war crime for which they can be prosecuted.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0308.

The manual also states: “Incitement to commit war crimes, such as killing civilians, is forbidden.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0421.

The manual further states that “persons responsible for improper treatment of prisoners of war, or for permitting such treatment, may be prosecuted as war criminals”. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0710.

In its chapter on the protection of prisoners of war, the manual states:
Prisoners of war prosecuted under the laws of the detaining power, for actions committed before their capture remain under the protection of the PoW Convention [1949 Geneva Convention III], even if convicted. This means that, after capture, a prisoner of war may be convicted for war crimes he has committed, but he retains prisoner-of-war status, with all associated rights. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0745.

In addition, the manual states: “Breaking of parole or breach of promise constitutes a war crime.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0755.

In its chapter on neutrality, the manual states:
A national of a neutral State, who lives in or visits an occupied territory, or the territory of a belligerent, may be convicted of war crimes or offences against the humanitarian law of war, like anyone else. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0943.

In its chapter on the prevention and punishment of war crimes, the manual states:
1131. War crimes means breaches of the laws and customs of war, infringements of the rules of the humanitarian law of war. It is further noted that war crimes at first sight are also crimes against humanity. However, one difference is that crimes against humanity can also be committed outside war. They may be carried out against the State’s own civilian population, and even be based on legal provisions enacted in the State itself. Moreover, such crimes have a different scope from war crimes in the narrow sense, namely suppression or destruction of populations or population groups on grounds of politics, race, belief, etc.
1132. The Geneva Conventions of 1949, which support States in establishing penal provisions to punish offenders against the rules of the law of war, also impose an obligation on States to prosecute violations and bring them to trial. The treaties of the law of war recognize the distinction between serious violations and other infringements of the obligations in the conventions. Serious breaches must be expressly threatened with punishment. No obligation applies to other infringements, i.e., more general offences against the laws and customs of war, but they may also be made punishable without an obligation to do so. This has now taken place in the Netherlands, in the form of the Act on the Criminal Law of War. Account is often taken of this distinction when determining the punishment. Of course, serious violations are breaches of the fundamental rules of the humanitarian law of war. Both the Geneva Conventions and AP I [1977 Additional Protocol I] define serious violations. Conventions enacted later (the Cultural Property Convention and the Chemical Weapons Convention) also require States to make breaches of their provisions punishable.

1134. The [Dutch] International Criminal Offences Act (see points 1137 ff.) contains an extensive summary of criminal behaviour (both serious violations and other infringements, formulated in the conventions on the law of war). 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 1131–1132 and 1134.

New Zealand
New Zealand’s Military Manual (1992) states:
The term “war crime” is the generic expression for large and small violations of the laws of warfare, whether committed by members of the armed forces or by civilians. It includes “grave breaches”. These are war crimes which are also major violations of the Geneva Conventions of 1949 or of [the 1977 Additional Protocol I]. “War crimes”, in the broadest sense, include crimes against peace and crimes against humanity of the type prosecuted before the International Military Tribunal at Nuremberg following World War II. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1701(1).

The manual further provides a long list of “grave breaches” and other war crimes. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, §§ 1702, 1703 and 1704.

The manual also states: “The fact that a particular act is not listed in this Manual as a war crime or grave breach does not preclude its being treated as a war crime if it is in breach of any rule of the customary or treaty law of armed conflict.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1704(6).

With respect to non-international armed conflicts in particular, the manual states:
Although breaches of [the 1977 Additional Protocol II] would amount to war crimes if committed in international armed conflict, both the governmental and rebel authority should treat them as breaches of the national criminal law, since the law concerning war crimes relates to international armed conflicts. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1824(1).

Nigeria
Nigeria’s Manual on the Laws of War states:
“War crime” is the technical term for violation of the Laws of war. It includes plotting, incitement or attempt to commit such crimes, as well as participation in the execution of these crimes. Grave breaches of the Geneva Conventions are considered as serious war crimes when committed against [a number of protected persons and objects listed within the provision]. 
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 6.

Peru
Peru’s IHL Manual (2004) states:
War crimes are violations of international humanitarian law or, to use the terminology established for international armed conflicts, grave breaches of the Geneva Conventions of 1949 and the laws and customs of war applicable in cases of international armed conflict. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 31.a.

The manual defines the term “war crimes” as:
They are violations of international humanitarian law judged and punished based on the Charter and Judgments of the Nuremberg and Tokyo Military Tribunals and UN 1950 [Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, United Nations International Law Commission, 5 June–29 July 1950]. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, Annex 9, Glossary of Terms.

Peru’s IHL and Human Rights Manual (2010) states: “War crimes are violations of international humanitarian law or, to use the terminology established for international armed conflicts, grave breaches of the Geneva Conventions of 1949 and the laws and customs of war applicable in cases of international armed conflict.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 32(a), p. 248; see also p. 406.

In its Glossary of Terms, the manual defines “war crimes” as:
[V]iolations of international humanitarian law judged and punished based on the Charter and Judgments of the Nuremberg and Tokyo Military Tribunals and UN 1950 [Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, United Nations International Law Commission, 5 June–29 July 1950]. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, p. 401.

Republic of Korea
The Republic of Korea’s Military Regulation 187 (1991) contains a list of war crimes. 
Republic of Korea, Military Regulation 187, 1 January 1991, Article 4.2.

Sierra Leone
Sierra Leone’s Instructor Manual (2007) states:
Any member[s] of the [Republic of Sierra Leone Armed Forces] who commit, order, assist, fail to prevent or fail to report serious violations of the law of armed conflict commit war crimes for which they can be tried and, if found guilty, punish[ed]. 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 65.
[emphasis in original]
The manual also states: “The torture of prisoners is a war crime.” 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 34.

South Africa
South Africa’s LOAC Manual (1996) provides:
35. While any breach of the law of armed conflict is a war crime, the Geneva Conventions of 1949 define certain offences as ‘grave breaches’ if they are committed against protected persons or property. Signatory states are required to treat as criminals under domestic law anyone who commits or orders a grave breach
36. [The 1977 Additional] Protocol I of the Geneva Conventions codifies in greater detail two separate categories of grave breaches.
a. The first category relates to combat activities and medical experimentation. It requires both willfulness and that death or serious injury to body or health is caused.
b. The second category requires only willfulness.
37. Grave breaches which fall into the first category include, but are not limited to, the following:

41. Grave breaches of the law of war are regarded as war crimes. They shall be repressed by penal sanctions. Other breaches of the law of war shall be repressed by disciplinary or penal sanctions. 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, §§ 35–37 and 41.

South Africa’s Revised Civic Education Manual (2004) states: “Any grave breach of the LOAC is regarded as a war crime.” 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 57.

Spain
Spain’s LOAC Manual (1996) contains a list of grave breaches which it considers to be “typified as war crimes”. It also states that “grave breaches are considered war crimes” and then sets out a list of acts considered to be grave breaches. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, §§ 9.2.a.(2) and 11.8.b.(1).

Sweden
Sweden’s IHL Manual (1991), in a provision dealing with penal responsibility for violations of IHL, states:
The Conventions distinguish between grave breaches and other transgressions. A grave breach in the meaning of the conventions exists where the breach has been directed at persons or property protected by the conventions and has also included any of certain specially listed acts. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 4.2, p. 93.

Switzerland
Switzerland’s Basic Military Manual (1987) provides:
Violations of the laws and customs of war, commonly called war crimes, engage the individual responsibility of the persons who committed them as well as the responsibility of the States to which the perpetrators of the violation are nationals. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 191.

The manual then provides a list of grave breaches of the 1949 Geneva Conventions and of the 1977 Additional Protocol I. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Articles 192 and 193.

Ukraine
Ukraine’s IHL Manual (2004) states:
Serious violations of the laws of war are war crimes.
Serious violations of international humanitarian law include:
- serious violations directed against people;
- serious violations directed against property;
- serious violations committed by means of perfidious use of internationally recognized distinctive emblems (insignia) and signals. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.8.4.

United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states:
The term “war crime” is the technical expression for violations of the law of warfare, whether committed by members of the armed forces or by civilians. It has also been customary to describe as war crimes such acts as espionage and so-called war treason which, although not prohibited by international law, are properly liable to punishment by the belligerent against which they are directed. However, the accuracy of the description of such acts as war crimes is doubtful. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 624.

The manual identifies a number of offences as war crimes, some of which are listed as grave breaches and some of which, under the heading “Other war crimes”, it describes as “examples of punishable violations of the laws of war, or war crimes”. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, §§ 625 and 626.

Under the same heading, the manual adds: “Similarly, all other violations of the [1949 Geneva] Conventions not amounting to ‘grave breaches’ are also war crimes.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 626.

The UK LOAC Manual (2004) states:
Serious violations of the law of armed conflict, other than those listed as grave breaches in the [1949 Geneva] Conventions or [the 1977 Additional Protocol I], remain war crimes and punishable as such. A distinction must be drawn between crimes established by treaty or convention and crimes under customary international law. Treaty crimes only bind parties to the treaty in question, whereas customary international law is binding on all states. Many treaty crimes are merely codifications of customary law and to that extent binding on all states, even those that are not parties. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.26.

The manual further states:
16.39. A person is normally only guilty of a war crime if he commits it with intent and knowledge.
16.39.1. However, some war crimes contain an integral mental element. An example is the grave breach of wilful killing. This word can be interpreted as extending beyond intent and knowledge. The International Committee of the Red Cross explain wilfulness as follows:
wilfully: the accused must have acted consciously and with intent, i.e. with his mind on the act and its consequences and willing them …; this encompasses the concepts of ‘wrongful intent’ or ‘recklessness’, viz., the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening; on the other hand, ordinary negligence or lack of foresight is not covered, i.e., when a man acts without having his mind on the act or its consequences …”
In the decided cases, the issue of recklessness has not been relevant, as the offences were so obviously committed with intent, except in those cases where command responsibility is invoked where there is a different test.
16.39.2. The governing provisions for international tribunals and courts have not, in the past, sought to outline general principles of law but to concentrate on substantive matters. Thus it has been left to the tribunals and courts to develop their own jurisprudence on a case by case basis. The Statute of the International Criminal Court, for the first time, has sought to rectify this and provides, in Article 30, that “unless otherwise provided” the material element of an offence must be committed “with intent and knowledge”. Both “intent” and “knowledge” are separately defined. This text, however, implies that there are occasions when this test may be inappropriate and, indeed, in the elements of crimes there are provisions which depart from Article 30, introducing a “should have known” test.
16.39.3. National tribunals will normally be governed by the general principles of law contained in their own domestic legislation although these will undoubtedly be influenced by any international jurisprudence that may exist. The United Kingdom has adopted, for the purposes of offences under the International Criminal Court Act 2001, the definition of “intent” contained in the Rome Statute as well as the provisions on command/superior responsibility. On other issues, such as general defences, the ordinary criminal law will apply. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 16.39–16.39.3.

With regard to internal armed conflict, the manual states:
War Crimes
15.32. Although the treaties governing internal armed conflicts contain no grave breach provisions, customary law recognizes that serious violations of those treaties can amount to punishable war crimes.
15.32.1. It is now recognized that there is a growing area of conduct that is criminal in both international and internal armed conflict. This is reflected in Article 8 of the Rome Statute.
15.32.2. “Customary international law imposes criminal liability for serious violations of Common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 15.32–15.32.2.

United States of America
The US Field Manual (1956) provides: “The term ‘war crime’ is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime.” 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 499; see also Operational Law Handbook (1993), p. Q-183.

The manual then states: “Conspiracy, direct incitement, and attempts to commit, as well as complicity in the commission of, … war crimes are punishable.” 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 500.

The manual further provides a list of “Grave Breaches of the Geneva Conventions of 1949 as War Crimes” 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 502.
and a list of “Other Types of War Crimes” which it describes as being “representative of violations of the law of war (“war crimes)”. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 504.

The US Air Force Pamphlet (1976) emphasizes the importance of criminal intent as an element of any war crime. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-2(c).

The US Instructor’s Guide (1985) provides: “Under the Geneva Conventions the most serious offenses are called grave breaches of the law of war.” 
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 13.

The US Naval Handbook (1995) provides:
War crimes are defined as those acts which violate the law of armed conflict, that is, the rules established by customary and conventional international law regulating the conduct of warfare, and which have been generally recognized as war crimes. Acts constituting war crimes may be committed by the armed forces of a belligerent or by individuals belonging to the civilian population.  
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989) § 6.2.5.

The Handbook then provides a list of acts which it characterizes as “representative war crimes”. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.2.5.

The US Naval Handbook (2007) states:
While there is not an exhaustive list of war crimes, they consist of serious and intentional violations of the law of armed conflict, which are generally recognized as war crimes and may be committed during periods of international or noninternational armed conflict. Acts constituting war crimes may be committed by combatants, noncombatants, or civilians. ….
Grave breaches of the Geneva Conventions are a special type of war crime. … The Geneva Conventions define grave breaches as:
acts committed against persons or property protected by the Conventions; willful killing, torture or inhumane treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6.

The Handbook then provides a list of acts which, “if committed intentionally, are examples of war crimes that could be considered grave breaches”. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6.

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Australia
Australia’s War Crimes Act (1945) considers that:
Unless the contrary intention appears, …
“war crime” means –
(a) a violation of the laws and usages of war; or
(b) any war crime within the instrument of appointment of the Board of Inquiry [set up to investigate war crimes committed by enemy subjects]
committed in any place whatsoever, whether within or beyond Australia, during any war. 
Australia, War Crimes Act, 1945, Section 3.

Australia’s War Crimes Act (1945), as amended in 2001, under the heading “War crimes”, states:
(1) A serious crime is a war crime if it was committed:
(a) in the course of hostilities in a war;
(b) in the course of an occupation;
(c) in pursuing a policy associated with the conduct of a war or with an occupation; or
(d) on behalf of, or in the interests of, a power conducting a war or engaged in an occupation.
(2) For the purposes of subsection (1), a serious crime was not committed:
(a) in the course of hostilities in a war; or
(b) in the course of an occupation;
merely because the serious crime had with the hostilities or occupation a connection (whether in time, in time and place, or otherwise) that was only incidental or remote.
(3) A serious crime is a war crime if it was:
(a) committed:
(i) in the course of political, racial or religious persecution; or
(ii) with intent to destroy in whole or in part a national, ethnic, racial or religious group, as such; and
(b) committed in the territory of a country when the country was involved in a war or when territory of the country was subject to an occupation.
(4) Two or more serious crimes together constitute a war crime if:
(a) they are of the same or a similar character;
(b) they form, or are part of, a single transaction or event; and
(c) each of them is also a war crime by virtue of either or both of subsections (1) and (3). 
Australia, War Crimes Act as amended, 1945, Section 7.

Azerbaijan
Azerbaijan’s Criminal Code (1999) provides for punishment, inter alia, in case of war crimes (Article 57) and contains provisions criminalizing: the use of “mercenaries” (Article 114); “violations of [the] laws and customs of war” (Article 115); “violations of the norms of international humanitarian law in time of armed conflict” (Article 116); “negligence or giving criminal orders in time of armed conflict” (Article 117); “pillage” (Article 118); and “abuse of protected signs” (Article 119). In a remark relating to the part entitled “War crimes”, the Code states: “Any of [the] acts considered in the present part and committed with regard to [the] planning, preparation, beginning or conduct of hostilities during either international or internal armed conflict, are considered as war crimes.” 
Azerbaijan, Criminal Code, 1999, Articles 57 and 114–119 and remark 1 relating to Part 17.

Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973), under a norm providing for the punishment of prohibited acts, lists “war crimes: namely, violation of laws or customs of war which include, but are not limited to … [a list of offences]”. The Act also provides for the punishment of the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” and “any other crimes under international law”. 
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(d), (e) and (f).

Belgium
Belgium’s Penal Code (1867), as amended in 2003, provides:
War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, constitute crimes under international law and shall be punished in accordance with the provisions of the present title, when such crimes endanger, by act or omission, persons and objects protected by these Conventions, Protocols, laws and customs, without prejudice to criminal provisions applicable to breaches committed out of negligence. 
Belgium, Penal Code, 1867, as amended on 5 August 2003, Chapter III, Title I bis, Article 136 quater, § 1.

The Penal Code further provides:
In the case of an armed conflict as defined in … Article 3 common [to the (1949) Geneva Conventions] the grave breaches of [common] Article 3, … listed below, constitute crimes under international law and shall be punished in accordance with the provisions of the present title, when such breaches endanger, by act or omission, objects protected by these Conventions, without prejudice to criminal provisions applicable to breaches committed out of negligence. 
Belgium, Penal Code, 1867, as amended on 5 August 2003, Chapter III, Title I bis, Article 136 quater, § 2.

The Penal Code further states:
The grave breaches set out in Article 15 of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, adopted in The Hague on 26 March 1999, committed in time of armed conflict, as defined in Article 18(1)(2) of the 1954 Hague Convention and in Article 22 of the said Second Protocol, and listed below, constitute crimes under international law and shall be punished in accordance with the provisions of the present title, when such breaches endanger, by act or omission, objects protected by these Conventions, without prejudice to criminal provisions applicable to breaches committed out of negligence. 
Belgium, Penal Code, 1867, as amended on 5 August 2003, Chapter III, Title I bis, Article 136 quater, § 3.

Belgium’s Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols (1993), as amended in 1999, states:
The grave breaches listed below which cause injury or damage, by act or omission, to persons or objects protected by the Conventions signed at Geneva on 12 August 1949 and approved by the Act of 3 September 1952, and by Protocols I and II additional to those Conventions adopted at Geneva on 8 June 1977 and approved by the Act of 16 April 1986, shall – without prejudice to the criminal provisions applicable to other breaches of the Conventions referred to in the present Act and without prejudice to criminal provisions applicable to breaches committed out of negligence – constitute crimes under international law and be punishable in accordance with the provisions of the present Act. 
Belgium, Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols, 1993, as amended in 1999, Article 1(3).

Belgium’s Law relating to the Repression of Grave Breaches of International Humanitarian Law (1993), as amended in 2003, provides:
War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, constitute crimes under international law and shall be punished in accordance with the provisions of the present title, when such crimes endanger, by act or omission, persons and objects protected by these Conventions, Protocols, laws and customs, without prejudice to criminal provisions applicable to breaches committed out of negligence. 
Belgium, Law relating to the Repression of Grave Breaches of International Humanitarian Law, 1993, as amended on 23 April 2003, Article 1 ter.

The Law further provides:
In the case of an armed conflict as defined in … Article 3 common [to the (1949) Geneva Conventions] the grave breaches of [common] Article 3, … listed below, constitute crimes under international law and shall be punished in accordance with the provisions of the present title, when such breaches endanger, by act or omission, objects protected by these Conventions, without prejudice to criminal provisions applicable to breaches committed out of negligence. 
Belgium, Law relating to the Repression of Grave Breaches of International Humanitarian Law, 1993, as amended on 23 April 2003, Article 1 ter, § 2.

The Law further states:
The grave breaches set out in Article 15 of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, adopted in The Hague on 26 March 1999, committed in time of armed conflict, as defined in Article 18(1)(2) of the 1954 Hague Convention and in Article 22 of the said Second Protocol, and listed below, constitute crimes under international law and shall be punished in accordance with the provisions of the present title, when such breaches endanger, by act or omission, objects protected by these Conventions, without prejudice to criminal provisions applicable to breaches committed out of negligence. 
Belgium, Law relating to the Repression of Grave Breaches of International Humanitarian Law, 1993, as amended on 23 April 2003, Article 1 ter, § 3.

Burundi
Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) states:
[The following are] considered as war crimes:
A. Grave breaches of the Geneva Conventions of 8 August 1949 … aimed at persons or objects protected by the provisions of the Geneva Conventions …
B. Other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of international law …
C. In the case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949 … committed against persons taking no direct part in hostilities, including members of armed forces who have laid down their arms and persons placed hors de combat by sickness, wounds, detention or any other cause …
D. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law. 
Burundi, Law on Genocide, Crimes against Humanity and War Crimes, 2003, Article 4.

Burundi’s Penal Code (2009) states:
“War crimes” means crimes which are committed as part of a plan or policy or as part of a large-scale commission of such crimes, in particular:
1. Any of the grave breaches of the 1949 Geneva Conventions …

2. Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law …

3. In the case of an armed conflict not of an international character, serious violations of article 3 common to the four 1949 Geneva Conventions … , namely, … acts … committed against 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 …

4. Item 3 applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or acts of a similar nature;
5. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law …

6. Item 5 applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or acts of a similar nature. 
Burundi, Penal Code, 2009, Article 198(1)–(6).

Cambodia
According to its Article 1, the express purpose of Cambodia’s Law on the Establishment of the ECCC (2001), as amended in 2004, is to:
bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 1.

As laid down in its Article 2 new, the Law therefore provides for the establishment of:
Extraordinary Chambers … in the existing court structure, namely the trial court and the supreme court to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian laws related to crimes, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 2 new.

The Extraordinary Chambers are competent, provided that the acts were committed during the period from 17 April 1975 to 6 January 1979, with regard to: homicide, torture and religious persecution as set forth in Cambodia’s 1956 Penal Code (Article 3 new); genocide (Article 4); crimes against humanity (Article 5); grave breaches of the 1949 Geneva Conventions (Article 6); destruction of cultural property during armed conflict pursuant to the 1954 Hague Convention for the Protection of Cultural Property (Article 7); and crimes against internationally protected persons pursuant to the 1961 Vienna Convention on Diplomatic Relations (Article 8). 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Articles 3 new-8.

Canada
Canada’s Criminal Code (1985) states:
“War crime” means an act or omission that is committed during an international armed conflict, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of the customary international law or conventional international law applicable in international armed conflicts. 
Canada, Criminal Code, 1985, Article 3.76.

Canada’s Crimes against Humanity and War Crimes Act (2000) defines a war crime as:
an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission. 
Canada, Crimes against Humanity and War Crimes Act, 2000, Sections 4 and 6.

Central African Republic
The Central African Republic’s Penal Code (2010) states:
Art.154: For the purposes of this code, “war crimes” are understood as: Grave breaches of the Geneva Conventions of 12 August 1949, namely any of the acts mentioned [in the Geneva Conventions] when they are committed against persons or property protected under the provisions of the aforementioned conventions.
Art.155: All other serious violations of the laws and customs applicable in international armed conflict under the framework established by international law shall also be considered as war crimes.
Art. 156: In the case of an armed conflict not of an international character, war crimes are serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely any acts committed against persons taking no active part in hostilities, including members of the armed forces who have laid down their arms and persons placed hors de combat by sickness, wounds, detention, or any other cause.
Art.157: The clauses of the previous article also apply to armed conflicts in which the Central African State opposes organized armed groups for a prolonged period of time on its territory, and to [conflicts] between organized armed groups. 
Central African Republic, Penal Code, 2010, Articles 154–157.

Chile
Chile’s Code of Military Justice (1925), under the heading “Treason, espionage and offences against the sovereignty and external security of the State”, provides a list of certain crimes directed against specific protected persons and objects, including misuse of the red cross flag and emblem in times of war. 
Chile, Code of Military Justice, 1925, Articles 261–264.

China
China’s Law Governing the Trial of War Criminals (1946) contains a list of offences regarded as war crimes and provides for the punishment of “other acts violating the law or usages of war, or acts whose cruelty or destructiveness exceeds their military necessity, forcing people to do things beyond their obligation, or acts hampering the exercise of legal rights”. 
China, Law Governing the Trial of War Criminals, 1946, Article 3.

Congo
The Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998) states:
By “war crimes” is meant:
a) grave breaches of the Geneva Conventions of 12 August 1949;
b) other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law;
c) serious violations of article 3 common to the four Geneva Conventions of 12 August 1949;
d) other serious violations recognized as being applicable to armed conflicts not representing an international character, within the established framework of international law. 
Congo, Genocide, War Crimes and Crimes against Humanity Act, 1998, Article 4.

Democratic Republic of the Congo
According to the Democratic Republic of the Congo’s Code of Military Justice (1972), as amended in 1980, war crimes are “all offences against the laws of the Republic which are not justified by the laws and customs of war”. 
Democratic Republic of the Congo, Code of Military Justice, 1972, as amended in 1980, Article 502.

The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
Chapter II: Crimes of genocide and crimes against humanity

Section 2: Crimes against humanity
Article 165
Crimes against humanity are grave violations of international humanitarian law committed against any civilian population before or during war.
Crimes against humanity are not necessarily linked to the state of war and can be committed not only between persons of different nationality, but even between subjects of the same State.
Article 166
The grave breaches listed hereafter, affecting, by action or omission, the persons and objects protected by the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977, constitute crimes against humanity, repressed according to the provisions of the present Code, without prejudice to more severe penal provisions provided by the ordinary Penal Code: …

Chapter III: War crimes
Article 173
As war crimes are to be understood all offences against the laws of the Republic committed during war and not justified by the laws and customs of war. 
Democratic Republic of the Congo, Military Penal Code, 2002, Articles 165–166 and 173.

Estonia
Estonia’s Penal Code (2001) states:
(1) Offences committed in times of war which are not provided for under this section [dealing with war crimes] are punishable on the basis of other provisions of the special part of this Code.
(2) A person who has committed an offence provided for under this section shall be punished only for the commission of a war crime even if the offence comprises the necessary elements of other offences provided for in the special part of this Code. 
Estonia, Penal Code, 2001, § 94.

Ethiopia
According to the Report on the Practice of Ethiopia (1998), acts which, in the meaning of Ethiopia’s Penal Code, constitute “war crimes in the context of [an] international armed conflict would also be crimes in the context of [an] internal armed conflict”. 
Report on the Practice of Ethiopia, 1998, Chapter 6.4.

Finland
Finland’s Revised Penal Code (1995) provides:
A person who in an act of war
1) uses a prohibited means of warfare or weapon;
2) abuses an international symbol designated for the protection of the wounded or the sick; or
3) otherwise violates the provisions of an international agreement on warfare binding on Finland or the generally acknowledged and established rules and customs of war under public international law
shall be sentenced for a war crime. 
Finland, Revised Penal Code, 1995, Chapter 11, Section 1.
[emphasis in original]
Finland’s Criminal Code (1889), as amended in 2008, states:
Section 5 - War crime
(1) A person who in connection with a war or other international or domestic armed conflict or occupation in violation of the Geneva conventions on the amelioration of the condition of the wounded and sick in armed forces in the field, the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea, the treatment of prisoners of war or the protection of civilian persons in time of war (Treaties of Finland 8/1955, Geneva conventions) or the additional amendment protocols … to the Geneva conventions, on the protection of victims of international armed conflicts and the protection of victims of non-international armed conflicts (Treaties of Finland 82/1980, I and II protocols) or other rules and customs of international law on war, armed conflict of occupation, [commits one of the offences enumerated in Section 5(1)],

shall be sentenced for a war crime to imprisonment for at least one year or for life.
(2) Also a person who commits another act defined under article 8 of the Rome Statute of the International Criminal Court (Treaties of Finland 56/2002) or in another manner violates the provisions of an international agreement on war, armed conflict or occupation that is binding on Finland or the generally recognized and established laws and customs of war in accordance with international law shall be sentenced for a war crime.
(3) An attempt is punishable.
Section 6 - Aggravated war crime
(1) If the war crime is committed as part of a plan or policy or as part of extensive war crimes and
(1) the offence is directed against a large group of persons,
(2) the offence causes very serious and extensive damage,
(3) the offence is committed in an especially brutal, cruel or degrading manner, or
(4) the offence is committed in an especially planned or systematic manner,
and the offence is aggravated also when assessed as a whole, the offender shall be sentenced for an aggravated war crime to imprisonment for at least eight years or for life.
(2) An attempt is punishable.
Section 7 - Petty war crime
(1) If the war crime, considering the consequence caused or the other relevant circumstances, is petty when assessed as a whole, the offender shall be sentenced for a petty war crime to a fine or to imprisonment for at most two years.
(2) An attempt is punishable. 
Finland, Criminal Code, 1889, as amended in 2008, Chapter 11, Sections 5–7.
[emphasis in original]
France
France’s Ordinance on Repression of War Crimes (1944), relating to offences committed during the Second World War, provided for the prosecution of:
enemy nationals or non-French agents … guilty of crimes or offences committed since the opening of hostilities either in France or in a territory under French authority, either against a French national or a person protected by France, a soldier serving or having served under the French flag, a stateless person residing on French territory … or a refugee on French territory, or to the prejudice of the property of any of these persons mentioned above and of any French legal entity, provided that these offences, even if committed at the occasion or under the pretext of the state of war, are not justified by the laws and customs of war. 
France, Ordinance on Repression of War Crimes, 1944, Article 1.

France’s Penal Code (1994), as amended in 2010, states:
War crimes … consist of offences … committed during an international or non-international armed conflict and in relation to such conflict, and which violate the laws and customs of war or the international conventions applicable to armed conflict. 
France, Penal Code, 1994, as amended in 2010, Article 461-1.

Ireland
Ireland’s International Criminal Court Act (2006) states that “‘war crime’ means any of the acts specified in Article 8.2 [of the 1998 ICC Statute] (except sub-paragraph (b)(xx))”. 
Ireland, International Criminal Court Act, 2006, § 6(1).

Israel
Israel’s Nazis and Nazi Collaborators (Punishment) Law (1950) defines war crimes as:
murder, ill-treatment or deportation to forced labour or for any other purpose of the civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or persons on the seas; killing of hostages; plunder of public or private property; wanton destruction of cities, towns or villages; and devastation not justified by military necessity. 
Israel, Nazis and Nazi Collaborators (Punishment) Law, 1950, Section 1(b).

Jordan
Jordan’s Military Penal Code (2002) contains a list of offences “committed in the event of armed conflicts” which constitute “war crimes”. 
Jordan, Military Penal Code, 2002, Article 41.

The Code provides that “the provisions [relating to war crimes] will apply to civilians who commit any war crime”. 
Jordan, Military Penal Code, 2002, Article 44.

Kenya
Kenya’s International Crimes Act (2008) states:
(1) A person who, in Kenya or elsewhere, commits –

(c) a war crime, is guilty of an offence.
(2) A person who, in Kenya or elsewhere, conspires or attempts to commit, or is an accessory after the fact in relation to, or who counsels in relation to, an offence mentioned in subsection (1) is guilty of an offence.
(3) A person who commits an offence under subsection (1) or (2) shall on conviction be liable –
(a) to be punished as for murder, if an intentional killing forms the basis of the offence; or
(b) to imprisonment for life or for a lesser term, in any other case.
(4) In this section –

“war crime” has the meaning ascribed to it in paragraph 2 of article 8 of the Rome [1998 ICC] Statute. 
Kenya, International Crimes Act, 2008, § 6(1)(c) and (2)–(4).

Latvia
Latvia’s Criminal Code (1998) provides for the punishment of “the committing of war crimes, that is, of violating provisions and customs regarding the conduct of war forbidden by international agreements binding upon the Republic of Latvia”. 
Latvia, Criminal Code, 1998, Section 74.

Luxembourg
Luxembourg’s Law on the Punishment of Grave Breaches (1985) criminalizes and identifies as “international law crimes” the grave breaches of the 1949 Geneva Conventions. 
Luxembourg, Law on the Punishment of Grave Breaches, 1985, Article 1.

Netherlands
The Extraordinary Penal Law Decree (1943), as amended in 1947, of the Netherlands, relating to offences committed during the Second World War, provided:
He who during the time of the … war and while in the forces or service of the enemy state is guilty of a war crime or any crime against humanity as defined in Article 6 under (b) or (c) of the [1945 IMT Charter (Nuremberg)] shall, if such crime contains at the same time the elements of an act punishable according to Netherlands Law, receive the punishment prescribed for such act.
If such crime does not at the same time contain the elements of an act punishable according to the Netherlands law, the perpetrator shall receive the punishment prescribed by Netherlands law for the act with which it shows the greatest similarity. 
Netherlands, Extraordinary Penal Law Decree, 1943, as amended in 1947, Article 27-a.

The Decree Instituting the Commission for the Investigation of War Crimes (1945) of the Netherlands, relating to offences committed during the Second World War, stated:
Under war crimes shall be understood … facts which constitute crimes considered as such according to Dutch law and which are forbidden by the laws and customs of war and have been committed during the present war by other than Dutchmen or Dutch subjects. 
Netherlands, Decree Instituting the Commission for the Investigation of War Crimes, 1945.

The Definition of War Crimes Decree (1946) of the Netherlands states: “Under war crimes are understood acts which constitute a violation of the laws and usages of war committed in time of war by subjects of an enemy power or by foreigners in the service of the enemy.” 
Netherlands, Definition of War Crimes Decree, 1946, Article 1.

New Zealand
New Zealand’s International Crimes and ICC Act (2000) defines war crimes as grave breaches of the 1949 Geneva Conventions, other serious violations of the laws and customs of war applicable in international armed conflict, serious violations of common Article 3 of the 1949 Geneva Conventions and other serious violations of the laws and customs applicable in armed conflict not of an international character. 
New Zealand, International Crimes and ICC Act, 2000, Section 11.

Nicaragua
Nicaragua’s Revised Penal Code (1998) provides that a person who during an international war or civil war commits serious violations of international treaties on the use of weapons, the treatment of prisoners or other rules of war, shall be guilty of an offence against the international order. 
Nicaragua, Revised Penal Code, 1998, Article 551.

Norway
Norway’s Act on the Punishment of Foreign War Criminals (1946) provided that acts forbidden by Norwegian criminal law which had been committed against Norwegian nationals or interests or in Norway during the Second World War and were in violation of the laws and customs of war could be tried according to Norwegian law. 
Norway, Act on the Punishment of Foreign War Criminals, 1946.

Republic of Moldova
The Republic of Moldova’s Penal Code (2002), at the end of a list of punishable acts related to armed conflict, states:
The provisions of Articles 389–391 [entitled “Pillage of the dead on the battlefield” (Article 389), “Acts of violence against the civilian population in the area of military hostilities” (Article 390) and “Grave breach of international humanitarian law committed during armed conflict” (Article 391)] also apply to the civilian population. 
Republic of Moldova, Penal Code, 2002, Article 393.

Senegal
Senegal’s Penal Code (1965), as amended in 2007, states:
[a)] Any of the following acts constitutes a war crime if it concerns members of the armed forces, the wounded, sick or shipwrecked, prisoners of war or civilians or objects protected by the provisions of the Geneva Conventions of 12 August 1949:

b) other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law … [also constitute war crimes]

c) in case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949 … committed against persons taking no direct part in hostilities, including members of the armed forces who have laid down their arms and persons placed hors de combat by sickness, wounds, detention or any other cause [also constitute war crimes]

d) …
Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law … [also constitute war crimes]. 
Senegal, Penal Code, 1965, as amended in 2007, Article 431-3(a)–(d).

Spain
Spain’s Penal Code (1995), after listing “crimes against protected persons and objects in the event of an armed conflict”, provides that it is an offence
in the event of an armed conflict, to commit or order to commit any other breaches or acts contrary to the provisions of international treaties to which [Spain] is a party, with regard to the conduct of hostilities, the protection of the wounded, sick or shipwrecked, the treatment owed to prisoners of war, [and] the protection of the civilian population and of cultural objects. 
Spain, Penal Code, 1995, Article 614.

Spain’s Penal Code (1995), as amended in 2010, states:
Anyone who, in the event of an armed conflict, … orders the commission of any of the following violations or acts in breach of the international treaties to which Spain is a signatory and relating to the conduct of hostilities, regulation of the means and methods of war, the protection of the wounded, sick and shipwrecked, the treatment of prisoners of war, the protection of civilians and the protection of cultural property in the event of armed conflict, shall be sentenced to six months to two years’ imprisonment. 
Spain, Penal Code, 1995, as amended on 23 June 2010, Article 614.

Uganda
Uganda’s ICC Act (2010) states:
For the purposes of this section, a “war crime” is an act specified in-
(a) article 8(2)(a) of the [1998 ICC] Statute (which relates to grave breaches of the First, Second, Third, and Fourth Geneva Conventions); or
(b) article 8(2)(b) of the Statute (which relates to other serious violations of the laws and customs applicable in international armed conflict); or
(c) article 8(2)(c) of the Statute (which relates to armed conflict not of an international character involving serious violations of article 3 common to the four Geneva Conventions of 12 August 1949); or
(d) article 8(2)(e) of the Statute (which relates to other serious violations of the laws and customs applicable in armed conflict not of an international character). 
Uganda, ICC Act, 2010, § 9(2).

United Kingdom of Great Britain and Northern Ireland
The UK Regulations for the Trial of War Criminals (1945), as amended in 1946, states: “‘War crime’ means a violation of the laws and usages of war committed during any war in which His Majesty has been or may be engaged at any time since the 2nd September, 1939.” 
United Kingdom, Regulations for the Trial of War Criminals, 1945, as amended in 1946, Regulation 1.

The UK International Criminal Court Act (2001) (Elements of Crimes) (No. 2) Regulations 2004 (2004), a UK Statutory Instrument made pursuant to Section 50(3) of the 2001 UK International Criminal Court Act, sets out the text of the Elements of Crimes adopted by the Assembly of States Parties of the ICC on 9 September 2002 in accordance with Article 9(1) of the ICC Statute. 
United Kingdom, International Criminal Court Act 2001 (Elements of Crimes) (No. 2) Regulations 2004, 2004, Sections 1–3 and Schedule.

The purpose of the Statutory Instrument is to apply the Elements of Crimes in domestic law, to be taken into account by UK courts when interpreting and applying the provisions of the 2001 UK International Criminal Court Act.
United States of America
The US War Crimes Act (1996) provides:
As used in this section the term ‘‘war crime’’ means any conduct –
1) defined as a grave breach in any of the [1949 Geneva Conventions], or any protocol to such convention to which the United States is a party;
2) prohibited by Article 23, 25, 27, or 28 of the [1907 Hague Regulations];
3) which constitutes a violation of common Article 3 of the [1949 Geneva Conventions], or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or
4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians. 
United States, War Crimes Act, 1996, Section 2441(c).

The US War Crimes Act (1996), as amended by the Military Commissions Act (2006), which was passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, changed the definition of “war crime” in relation to common Article 3 of the 1949 Geneva Conventions as follows:
§ 2441. War crimes

(c) Definition – As used in this section the term “war crime” means any conduct —

(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character. 
United States, War Crimes Act, 1996, 18 United States Code Sec. 2441, as amended by Military Commissions Act, 2006, 17 October 2006, § 2441 (c)(3).

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Australia
In the Polyukhovich case before Australia’s High Court in 1991, in which the accused was charged with crimes committed during the Second World War, certain judges addressed the nature of war crimes. Judge Brennan stated:
A war crime in international law consists in a violation of those laws and customs of war … which oblige belligerents to abstain from prescribed anti-humanitarian acts in the waging of armed conflicts. The laws and customs of war are prohibitory in nature; they do not authorize the use of force. 
Australia, High Court, Polyukhovich case, Legal Reasoning of Judge Brennan, 14 August 1991, § 37.

Judge Toohey stated: “War crimes in international law are contraventions of the laws and customs of war recorded in such documents as the Hague Conventions of 1907 and in military manuals.” 
Australia, High Court, Polyukhovich case, Legal Reasoning of Judge Toohey, 14 August 1991, § 37.

Judge Toohey added: “There is no doubt that war crimes were crimes in international law during World War II.” 
Australia, High Court, Polyukhovich case, Legal Reasoning of Judge Toohey, 14 August 1991, § 39.

In 2000, in the SRNN case, Australia’s Administrative Appeals Tribunal stated:
63. … There would seem to be no reason why grave breaches of the Geneva Conventions of 1949 should amount to war crimes only within the confines of international conflicts. The clear implication of the recent developments that have occurred with the establishment of both the specialist tribunals for dealing with war-related atrocities in the former Yugoslavia and in Rwanda, as well as the more recent Statute of Rome, all point to a broader definition of such crimes.

71. The actions committed by Mr SRNN amount, in the Tribunal’s view, to war crimes within the terms of Article 3 of the Geneva Conventions of 1949 as contended by the respondent. Mr SRNN was well aware of the purpose of the torture that he inflicted during his various interrogations, and he shared that purpose and was prepared to refer persons for more severe torture if they failed to provide satisfactory responses to his own form of questioning. Mr SRNN was also well aware of the nature of the Sri Lankan Army’s methods of handling LTTE [Liberation Tigers of Tamil Eelam] and other suspects including, during his second tour of duty, knowledge of the existence of special torture chambers in Colombo where persons were routinely killed. In the circumstances there are no reasons why he should not be found to be fully responsible for his actions, even though he was part of a military and political regime that encouraged and supported the war crimes that he committed. 
Australia, Administrative Appeals Tribunal, SRNN case, Decision, 10 November 2000, §§ 63 and 71.

In 2002, in the SAH case, Australia’s Administrative Appeals Tribunal stated:
58. There is no question that the applicant was a member of the Iraqi Army at the time such war crimes and crimes against humanity were committed. He admits that he knew about atrocities and events such as those to which I have referred in the course of these reasons. He denies, however, that he played any part in them and that, at all times, he was an administrative officer engaged solely in the distribution of supplies such as food, clothing and shoes and in the payment of salaries. …
59. In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime. Apart from being a member of, and indeed an officer of, the Iraqi Army at all relevant times, there is no evidence pointing to the applicant’s having played such a role. … The applicant has admitted knowledge of the activities of the Iraqi Army but knowledge of itself does not mean that he was a part of the common purpose or aided or abetted those activities. There is no evidence that he acquired knowledge of the activities before they were carried out and so became part of their planning or a key element in their being carried out or whether he acquired knowledge at some later stage. There is no evidence that he acquired his knowledge while he played some role in carrying them out. Indeed, there is no evidence that he played any role at all. 
Australia, Administrative Appeals Tribunal, SAH case, Decision, 18 April 2002, §§ 58–59.

In 2002, in the AXOIB case, Australia’s Administrative Appeals Tribunal stated:
27. Violations of the laws or customs of war may amount to “war crimes”. Such violations may include murder, ill treatment or deportation to slave labour or for any other purpose of members of the civilian population of or in an occupied territory, murder or ill treatment of prisoners-of-war, or persons on the seas.

32. I also accept the correctness of the view of Deputy President Chappell in SRNN v DIMA (supra) where he observed that there is no reason “why grave breaches of the Geneva Convention of 1949 should amount to war only within the confines of international conflict”.
33. Article 6 of the … [Nuremberg Charter] provides that “leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan”. Article 25 of the Rome Statute provides an even broader definition of criminal complicity. By any standard of criminal complicity or accessorial liability applicable in this country, the applicant would be beyond the protection of the Convention if there are serious reasons for considering that he aided and abetted either war crimes or crimes against humanity by reporting individuals to Perera or the security forces if he knew the outcome of his impugned conduct was likely to be torture or murder of those individuals. In the circumstances his intent to achieve such outcome could and should be inferred in my opinion. 
Australia, Administrative Appeals Tribunal, AXOIB case, Decision, 17 May 2002, §§ 27 and 32–33.

In 2002, in the SAL case, Australia’s Administrative Appeals Tribunal stated:
In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime. 
Australia, Administrative Appeals Tribunal, SAL case, Decision, 12 November 2002, § 85.

In 2002, in the VAG case, Australia’s Administrative Appeals Tribunal stated:
66. In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime.

75. In the absence of any evidence that the killing of the two prisoners was carried out according to a judicial order properly obtained, it does amount to a war crime or a crime against humanity. Do VAG’s actions in sending them on mean that was part of the common purpose in carrying out those activities. He participated in the ultimate result by sending the prisoners on to the headquarters. He was part of the PUK [Patriotic Union of Kurdistan], some of whose members killed two of those prisoners, but he was not present at the time and disclaimed knowledge of what would happen. In that sense, VAG was at arm’s length from the killings that ultimately occurred and there is no evidence to suggest that he was able to prevent their occurring. Unlike an informer who may be able to choose whether or not he passes on information, this was not a case in which VAG could choose not to send the prisoners as he had been directed to do without consequence to himself. In that case and given his distance from the killings themselves, I do not consider that he can be said to have been part of any common purpose in carrying out the killings. As they are the only specific crimes that are crimes against humanity or war crimes, I do not consider that VAG was part of a common purpose and so was not an accessory to them.
76. With regard to the wider war crimes and crimes against humanity committed by the PUK, I do not consider that the evidence supports a finding that there are serious reasons for considering that VAG was in a position where he could influence the course of events. Certainly, he was a long standing member of the PUK and a member who drew a number of people into the PUK but there is no evidence that he participated in acts of atrocity, was present at any as a bystander or instigated or directed any. There is no evidence that he initiated events that led to any such acts. 
Australia, Administrative Appeals Tribunal, VAG case, Decision, 23 December 2002, §§ 66 and 75–76.

In 2004, in the SRDDDD case, Australia’s Administrative Appeals Tribunal stated:
58. The Tribunal is satisfied that there are serious reasons for considering that the Applicant did commit, and was within the meaning of the Rome Statute, criminally responsible for, committing crimes against humanity and war crimes. The evidence against the Applicant in this regard is strong. However, the Tribunal is also satisfied that there are serious reasons for considering that the Applicant committed the relevant crimes as a consequence of his political motivation. That is, the Applicant’s motives for committing the crimes were significantly political in nature. It is not a minority motivation that was political. The conduct engaged in by the Applicant would not have been committed in the absence of political motivation.
59. However, as earlier indicated in these reasons, Article 1F [of the 1951 Refugee Convention] requires only one of the enumerated subparagraphs to be considered. The paragraphs are to be taken as independent the one from the other, the political flavour of Article 1F(b) not being relevant to a construction of Article 1F (a) or 1F (c). As earlier found in these reasons, each sub-article is intended to embrace a distinct factual situation; the “serious non-political crime” in (b) being a different offence comprised of a different factual situation to the crime against peace, “the war crime” or “crime against humanity” in (a). Thus consistent with this construction of the Article, if the factual situation leads a decision-maker to the opinion that there exists serious reasons for considering that a war crime or a crime against humanity has been committed by an Applicant, it is of no defence to that Applicant for the Tribunal of fact to also be satisfied that there are serious reasons for considering that he has committed a serious non-political crime, and thereby that the crimes committed by him were politically motivated.
60. The Tribunal being satisfied that there are serious reasons for considering that the Applicant has committed war crimes and crimes against humanity Article 1F applies so as to preclude the Applicant from protection under the Refugees Convention. 
Australia, Administrative Appeals Tribunal, SRDDDD case, Decision, 13 February 2004, §§ 58–60.

In 2005, in the SRYYY case, the Federal Court of Australia noted:
49 Perhaps the most significant change in terms of scope and content of individual criminal responsibility since the Second World War has been the recent acceptance that war crimes for which an individual may be criminally responsible may be committed in situations of internal armed conflict. As recently as 1994, the Commission of Experts established pursuant to Security Council Resolution 780 to report on questions relating to breaches of humanitarian law in the former Yugoslavia concluded that “there does not appear to be a customary international law applicable to internal armed conflicts which includes the concept of war crimes” and, consequently, “the violations of the laws or customs of war referred to in article 3 of the statute of the International Tribunal are offences when committed in international, but not in internal armed conflicts” (Annexure to the Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992), UN Doc. S/1994/674 at [52] and [54]). The situation under customary law was also reflected in the international instruments which dealt with war crimes up to and including the Statute of the ICTY. That changed in 1994 with the Statute of the ICTR and in 1995 with the ICTY’s decision in Tadic. In Tadic the ICTY held at [94] that customary international law did contain an offence of war crimes committed during internal armed conflict, and imported such an offence into Art 3 of the ICTY Statute. However, war crimes are defined so as to include conduct occurring in an internal armed conflict under the Statutes of the ICTY and the ICTR, the Draft Code of Crimes and the Rome Statute, but were not so defined in the earlier instruments.

75 In our view the Rome Statute was drawn up to provide for the crimes it defined and purported to define those crimes as crimes that had crystallised into crimes in international law as at the date of the Statute, notwithstanding that the Statute was to come into force, and the ICC was to be established, at a later date.
76 For the above reasons we are of the view that the definitions of crimes against humanity and war crimes contained in Arts 7 and 8(2)(c) of the Rome Statute respectively were appropriate definitions for the AAT [Administrative Appeals Tribunal] to apply and that the AAT did not err in law in applying those definitions. It is therefore unnecessary to consider whether, by his conduct in relying on the definitions in the Rome Statute before the AAT, the appellant was precluded in any event from asserting that the AAT had fallen into jurisdictional error when applying those definitions. 
Australia, Federal Court, SRYYY case, Judgment, 17 March 2005, §§ 49, 75 and 76.
[emphasis in original]
In 2006, in the SZCWP case, Justice Downes, in a majority decision of the full bench of the Federal Court of Australia, stated:
107. In SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 42 … a Full Court of the Federal Court held that it was appropriate to refer to Articles 7 and 8 of the Rome Statute of the International Criminal Court for definitions of “Crimes against humanity” and “War crimes”.

114. … Internal disturbances and tensions are excluded. There must be an armed conflict although it need not be of an international character. Criminal responsibility attaches to aiding, abetting and assisting or in any other way contributing to the commission or attempted commission of such a crime where there is a group acting with a common purpose and the contribution is intentional and with at least knowledge of the intention to commit the crime. (See paragraph 2(f) of Article 8 and Article 25 of the Rome Statute). 
Australia, Federal Court, SZCWP case, Judgment, 20 February 2006, §§ 107 and 114.

Chile
In its decision on annulment in the Víctor Raúl Pinto case in 2007, Chile’s Supreme Court stated:
On 21 November 1947, with Chile in attendance, the [UN] General Assembly, through the International Law Commission as its sub-organ responsible for the enunciation of principles and the proposal of norms in relation to crimes against the peace and security of mankind, formulated the principles of international law recognised by the Charter and judgments of the Nuremberg Tribunal. These principles were adopted in 1950 (A/CN. 4/34) and include the prosecution and punishment of crimes against peace, war crimes and crimes against humanity. Item 6 of these norms points out that the following crimes are punishable under international law:
a) Crimes against peace … ;
b) War crimes: Violating laws and customs of war.

The above mentioned document became the expression of existing international law at the time of its creation and, as such, is in itself a contribution to said law. By virtue of this document recognition was given to the existence of an international custom as an expression of said law, which prohibited such crimes (Hugo Llanos Mansilla: “Teoría y Práctica del Derecho Internacional Público”, Editorial Jurídica de Chile, Santiago, Chile, 1977, page 35). 
Chile, Supreme Court, Criminal Law Chamber, Víctor Raúl Pinto case, Case No. 3125-04, Decision on Annulment, 13 March 2007, § 29.

Democratic Republic of the Congo
In July 2007, the Military Auditor at the Military Garrison Court of Haut-Katanga at Kipushi referred the Kyungu Mutanga case for trial at the court. The charges listed in the referral decision included:
1. Having, in the territory of Manono, district of Tanganyika, and in the territories of Pueto and Mitwaba, district of Haut-Katanga, province of Katanga, in the Democratic Republic of the Congo, at an unspecified date, but within the period of October 2003 to 12 May 2006, a time not yet falling under the legal period of limitation, …

3. Having committed war crimes, in the same circumstances of place and time as above, as part of a plan or a policy or a large-scale commission of such crimes, in view of either the grave breaches of the Geneva Conventions of 12 August 1949, namely acts against persons or property protected under the provisions of the Geneva Conventions; (…) or, in the case of an armed conflict not of an international character at the exclusion of situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, acts committed against 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; or other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, excluding situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature, including armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups … 
Democratic Republic of the Congo, Military Auditor at the Military Garrison Court of Haut-Katanga, Kyungu Mutanga case, Referral decision, 10 July 2007, pp. 3–4.

Germany
In 2008, in the Kurdish Refugee case, Germany’s Higher Administrative Court for the Federal Land of Bavaria found that a Kurdish refugee claimant from Turkey was to be excluded from refugee protection inter alia because there were serious reasons for considering that he had committed war crimes during involvement with the Kurdistan Workers’ Party. The court held:
46
According to §8 of the International Crimes Code and Art. 8 para. 2 of the [1998] Rome Statute, war crimes can be committed both in an international armed conflict and in purely domestic confrontations … At least this is the case if the duration and intensity of a non-international armed conflict exceeds the internal disturbances, tensions, riots and isolated acts of violence listed in Art. 8 para. 2 sub-paras. d and f of the Rome Statute. … [T]he fighting between the Turkish State and the PKK [Kurdistan Workers’ Party] in the time period between 1987 and 1991 amounted to a “civil war” (and thus exceeded the type of conflict mentioned in Art. 8 para. 2 sub-paras. d and f of the Rome Statute) …

50
According to Art. 27 para. 1 sentence 1 of the Rome Statute, perpetrators capable of committing war crimes … do not only include persons who exert an official function within a State. This is because the opportunity to suppress such wrongs cannot depend on whether the perpetrator acted as a representative of the State, or on whether pertinent crimes are being committed by forces opposing the State, as is often the case in reality. The view that the crimes listed in Art. 1 F para. a GFK [of the 1951 Refugee Convention] can only be perpetrated by persons who have a high position within the power structure of a political system, a State or a State-like entity can only be sustained as regards crimes against peace. 
Germany, Higher Administrative Court for the Federal Land of Bavaria, Kurdish Refugee case, Judgment, 21 October 2008, §§ 46 and 50.

In 2010, in the Chechen Refugee case, Germany’s Federal Administrative Court was called upon to decide whether a Russian refugee claimant from Chechnya had to be excluded from refugee protection because there were serious reasons for considering that he had committed a war crime in Chechnya in 2002 by killing two Russian soldiers and taking a Russian officer hostage. In examining who can be the victim of a war crime, the court held:
26
In defining crimes against peace, war crimes and crimes against humanity, § 3 para. 2 sentence 1 no. 1 AsylVfG refers to “the international instruments drawn up to make provision in respect of such crimes”. As the Senate stated in its judgment of 24 November 2009 (BVerwG 10 C 24.08) … , the question of whether war crimes or crimes against humanity exist in the sense of § 3 Abs. 2 Satz 1 Nr. 1 AsylVfG must be primarily determined in light of the elements of these crimes as set out in the Rome Statute of the International Criminal Court of 17 June 1998 … This reflects the current state of the criminalization of violations of international humanitarian law.
27
In defining war crimes, Article 8 para. 2 ICC Statute distinguishes between acts in international armed conflicts (paras. a and b) and non-international armed conflicts (paras. c to f). Regarding international armed conflict, para. c ties in with the grave breaches of Article 3 common to the four Geneva Conventions relative to the Protection of Victims of Armed Conflict of 12 August 1949. This provision inter alia criminalizes violence to life and person and the taking of hostages who are not directly participating in hostilities, including members of the armed forces who have laid down their weapons and persons who have been placed hors de combat by illness, injury, capture or any other reason. This provision thus also considers acts as war crimes which are directed against soldiers. Para. e covers other violations of the laws and customs of war applicable in internal armed conflict. Numbers IX–XI of para. e cover the protection of enemy combatants in case of perfidious killing or injury, the declaration that no quarter shall be given and the physical mutilation of persons who are in the power of an adverse party. 
Germany, Federal Administrative Court, Chechen Refugee case, Judgment, 16 February 2010, §§ 26–27.

In 2010, in the Fuel Tankers case, the Federal Prosecutor General at Germany’s Federal Court of Justice investigated whether war crimes or other crimes under domestic law had been committed in the course of an airstrike which was ordered by a colonel (Oberst) of the German armed forces against two tankers transporting fuel for the International Security Assistance Force in Afghanistan stolen by the Taliban near Kunduz and which resulted in the death of a number of civilians. The Federal Prosecutor General stated:
Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (Oberst) Klein and Company Sergeant Major (Hauptfeldwebel) Wilhelm due to suspected offences under the VStGB [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter. 
Germany, Federal Court of Justice, Federal Prosecutor General, Fuel Tankers case, Decision, 16 April 2010, p. 1.

The Federal Prosecutor General also stated:
II.
Criminal liability under the International Crimes Code (VStGB)
The International Crimes Code applies in the present case because the characteristic element of the crimes listed in paragraph 2 of the Code (“war crimes”), namely the connection with an armed conflict, in this case a non-international armed conflict, are fulfilled. However, Colonel (Oberst) Klein does not incur criminal liability under the International Crimes Code because his conduct did not fulfil the other elements of the crimes.

2.
Context
The airstrike of 4 September 2009 was carried out “in the context of the non-international armed conflict” in Afghanistan. The necessary functional context with the conflict … is fulfilled because the dropping of the bombs was ordered by Oberst (Colonel) Klein in his capacity as commander of the PRT [Provincial Reconstruction Team] in pursuance of his military mission in the context of the conflict with the Taliban and not solely on the occasion of the confrontations with the insurgents. 
Germany, Federal Court of Justice, Federal Prosecutor General, Fuel Tankers case, Decision, 16 April 2010, p. 45; see also p. 58.

In 2010, in the DRC case, Germany’s Federal Court of Justice decided to remand in pre-trial custody a national of the Democratic Republic of the Congo (DRC) who had been living in Germany. The court summarized the facts of the case as follows:
The subject of the arrest warrant is the allegation that as the president of the paramilitary militia organisation “Forces Démocratiques de Libération du Rwanda” [Democratic Forces for the Liberation of Rwanda] (hereafter FDLR), which is operating in the provinces North Kivu and South Kivu of the Democratic Republic of [the] Congo … , the accused is criminally liable because he is responsible as superior for crimes against humanity and war crimes and as the ringleader of a terrorist group abroad. 
Germany, Federal Court of Justice, DRC case, Decision, 17 June 2010, § 2.

The court stated:
There is the strong suspicion that the members of the FDLR operating in the DRC have committed crimes against humanity under § 7 para. 1 numbers 1 and 6 VStGB [Germany’s International Crimes Code], war crimes against persons under § 8 para. 1 numbers 1, 3, 4 and 5 VStGB and war crimes against property and other rights under § 9 para. 1 VStGB, for which the accused is criminally liable as superior under § 4 VStGB. 
Germany, Federal Court of Justice, DRC case, Decision, 17 June 2010, § 23.

The court further stated:
30. An individual is criminally liable for war crimes against persons under § 8 para. 1 VStGB if he or she in the context of an international or non-international armed conflict committed one of the acts described in numbers 1 to 9 [of this provision]. In contrast to crimes against humanity under § 7 VStGB, it is not necessary here that the acts are part of a widespread or systematic attack against the civilian population.
31. The fighting between the FDLR and the Congolese or Rwandan troops in the Eastern DRC constitutes an armed conflict in the sense of § 8 para. 1 VStGB. …
32. In order to evaluate the punishability of an act under § 8 para. 1 VStGB it is not necessary to examine whether the confrontations between the FDLR and their opponents in the Eastern DRC are to be considered an international or non-international armed conflict. In this respect the German legislator refrained from using the distinction in the [1998] ICC Statute between war crimes in international armed conflict and in civil war or non-international armed conflict as a fundamental structural principle of the law.
33. It must be strongly suspected that in the context of the armed confrontations, members of the FDLR killed civilians who are to be protected under international humanitarian law (§ 8 para. 1 no. 1 VStGB), treated them cruelly or inhumanely by inflicting substantial physical or mental harm (§ 8 para. 1 no. 3 VStGB), sexually coerced or raped them (§ 8 para. 1 no. 4 VStGB) and enlisted children under the age of 15 years in the FDLR and used them to participate actively in hostilities (§ 8 para. 1 no. 5 VStGB). The acts correspond to the FDLR’s war strategy; they therefore occurred in the functional context of the armed conflict and did not merely happen “on the occasion” of the conflict. 
Germany, Federal Court of Justice, DRC case, Decision, 17 June 2010, §§ 30–33.

Hungary
In its Decision No. 53/1993, the Constitutional Court of Hungary stated:
In the cases of war crimes and crimes against humanity, such criminal offenses are involved whose classification did not arise as part of the domestic law’s criminal taxonomy, but are deemed to constitute criminal offences by the international community which defines their elements.
These criminal offences – according to the legal standard of international law which evolved since World War II – are not simply offences punishable by the domestic law of most countries. (Therefore, homicide may not, in itself, be classified as a crime against humanity.) Their international status derives from their definition on a supranational level, either on the basis of natural law (invocation of basic principles above and beyond positive law within international law is also a guarantee against arbitrary international agreements), or by reference to the protection of the “foundations of the international community,” or by citing the threat posed by these activities for all of humanity: its commissioners are “enemies of the human race”. Thus, the significance of these offences is too great to permit their punishment to be made dependent upon the acquiescence or general penal law policy of individual nation states. 
Hungary, Constitutional Court of Hungary, Decision No. 53/1993, 13 October 1993, Reasoning, Part IV, § 1.

The Court further stated:
According to the definition of article 13 § (7), (para. 84(g) of the Official Compilation of Penal Regulations in Force, or “OCPRF”), determined by article 8 of 1440/1945 (V.1.) ME decree, of the 81/1945 (II. 5) ME decree elevated to the status of a law by Law VII of 1945 on People’s Tribunals, a person is a war criminal who “in any form commits or has committed, causes or has caused such activities to take place which are capable of undermining or rendering more difficult the post-war peace or cooperation of the nations, or which may create international conflict.”
Such a definition does not appear in a single international convention or document which contains regulations on war crimes or crimes against humanity, and especially not in those which undoubtedly qualify as the repositories of generally recognized principles by the community of nations or international customary law. This substantive law, international humanitarian law, was recapitulated most recently by the document authorizing the International Tribunal to prosecu te the war crimes committed in the territory of the former Yugoslavia. The rules of the international humanitarian law embrace: the offense of “grievous violation of rights” defined by the Geneva Convention of August 12, 1949; the violation of the rights and customs of wars, as the rules of the 1907 Hague Convention were interpreted and applied by the Nuremberg International Military Tribunal; the actions made punishable under the Convention on the Prevention and Punishment of the Crime of Genocide, whether committed during war or peace time; and, finally, the crimes against humanity, as contained in the Charter and the judgment of the Nuremberg International Military Tribunal, committed against the civilian population during international or domestic armed conflicts. Within these broad categories, the documents and pertinent conventions contain the specific definitions of the behaviours constituting the offences. In this constitutional review procedure the Constitutional Court refrained from addressing whether the definition contained in article 1 of the Law is unconstitutional for lack of definitiveness, but holds that its general definition cannot be classified as war criminal behaviour according to the international legal definitions on such offences.  
Hungary, Constitutional Court of Hungary, Decision No. 53/1993, 13 October 1993, Reasoning, Part V, § 2.

Israel
In its judgment in the Enigster case in 1952, Israel’s District Court of Tel Aviv held with respect to the Israeli Nazis and Nazi Collaborators (Punishment) Law: “At all events the victims of a war crime must be nationals of an occupied territory, while this is not necessary in the case of a crime against humanity which may be committed against any civilian population.” However, it also stated: “True, it is possible to find a man guilty of a war crime even though he is of the population of occupied territory and possesses the same national character as his victims, if his actions show that he identified himself with the Occupant.” 
Israel, District Court of Tel Aviv, Enigster case, Judgment, 4 January 1952.

Netherlands
In the Pilz case in 1949, the Special Criminal Chamber of the District Court of The Hague (Netherlands) and, on appeal in 1950, the Special Court of Cassation of the Netherlands agreed that the 1907 Hague Regulations had not been violated, since the object of the 1907 Hague Regulations, and in particular of Article 46, was to protect the inhabitants of an enemy-occupied country and not members of the occupying forces. With respect to the 1929 Geneva Convention, the Special Court of Cassation stated that the Convention only protected members of an army against acts by members of the opposing army. Therefore, the acts of a German military doctor with respect to an escaping member of the German army did not constitute war crimes, but were crimes in the domestic sphere of German military law and jurisdiction. 
Netherlands, District Court of The Hague (Special Criminal Chamber), Pilz case, Judgment, 21 December 1949; Special Court of Cassation, Pilz case, Judgment, 5 July 1950.

Norway
In its judgment in the Repak case in 2010, Norway’s Court of Appeal stated:
Not all violations of international humanitarian law are to be regarded as war crimes. The starting point is that the violation must involve a serious breach of a rule of international law that protects substantial values, and that causes individual criminal responsibility according to either international customary law or treaty based law. 
Norway, Borgarting Lagmannsrett (Court of Appeal), Repak case, Judgment, 12 April 2010, p.15, section 3.

Philippines
In the Cantos case before the Philippine Supreme Court in 1946, the court dismissed (in a majority opinion) a petition for habeas corpus made by a Japanese/Philippine civilian, finding that the petitioner was subject to the jurisdiction of a US military commission. In its judgment, the court noted:
It is well settled that war crimes may be committed not only by lawful belligerents but by any “men and bodies of men, who, without being lawful belligerents” “nevertheless commit hostile acts of any kind.” (Par. 351, Rules of Land Warfare.) “Persons of the enemy territory who steal within the lines of hostile army for the purpose of robbing, killing, etc.” are also war criminals subject to the jurisdiction of military commissions. (Par. 352, id., id.) And in the preamble to the Hague Convention it is declared that “until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.”

Here, the petitioner is a Filipino citizen though of a Japanese father, and associating himself with Japan in the war against the United States of America and the Philippines, committed atrocities against unarmed and noncombatant Filipino civilians and looted Filipino property. He is, indeed, a war criminal subject to the jurisdiction of the military commission, and his confinement by the respondent is not illegal. (In re Yamashita, 66 Sup. Ct., 340; 90 Law. ed., 499.) 
Philippines, Supreme Court, Cantos case, Judgment, 28 June 1946.

Spain
In 2010, in the Couso case, which concerned the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America, the Criminal Chamber of Spain’s Supreme Court referred to norms of IHL relevant to the case under review, including Article 147 of the 1949 Geneva Convention IV on grave breaches. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, § 2, p. 13.

The court also restated Article 85 of the 1977 Additional Protocol I on grave breaches. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, § 2, p. 16.

United Kingdom of Great Britain and Northern Ireland
In the Zyklon B case in 1946, the UK Military Court at Hamburg convicted Bruno Tesch and Karl Weinbacher, civilian entrepreneurs, for the commission of a war crime in that they “at Hamburg, Germany, between 1st January, 1941, and 31st March, 1945, in violation of the laws and usages of war did supply poison gas used for the extermination of allied nationals interned in concentration camps well knowing that the said gas was to be so used.” Bruno Tesch was owner of a firm which arranged for the supply of poison gas (Zyklon B) intended for the extermination of vermin. Karl Weinbacher was Tesch’s procurist or second-in-command. Joachim Drosihn was the firm’s fist gassing technician. The defence claimed that the accused did not know of the use to which the gas was to be put. For Drosihn it was also pleaded that the supply of gas was beyond his control. Tesch and Weinbacher were condemned to death. Drosihn was acquitted. 
United Kingdom, Military Court at Hamburg, Zyklon B case, Judgment, 1–8 March 1946.

United States of America
In a number of post-Second World War decisions, US courts held that war crimes could be committed by civilians. The cases included prosecutions against the staff of a State sanatorium for the extermination of civilians deported from occupied territories; officials of companies which supplied the gas used for the extermination of concentration camp detainees; and high-ranking officials in private corporations for, inter alia, deportation of the civilian populations of occupied territories to slave labour and plunder of public and private property in occupied territories. For example, in the Flick case in 1947, the US Military Tribunal at Nuremberg stated:
Acts adjudged criminal when done by an officer of the government are criminal also when done by a private individual. The guilt differs only in magnitude, not in quality. The offender in either case is charged with personal wrong and punishment falls on the offender in propria persona. The application of international law to individuals is not a novelty. 
United States, Military Tribunal at Nuremberg, Flick case, Judgment of 22 December 1947; see also Military Commission in Wiesbaden, Klein case (The Hadamar Trial), Judgment, 8–15 October 1945, Military Tribunal at Nuremberg, Krupp case, Judgment, 17 December 1947–30 June 1948, and Military Tribunal at Nuremberg, Krauch case (The I.G. Farben Trial), Judgment, 14 August 1947–29 July 1948.

In its judgment in the Handel case in 1985, a US District Court held:
“War crimes” refers to criminal actions taken against the soldiers or civilians of another country rather than against the defendant’s fellow citizens. This limitation on the meaning of “war crimes” is reflected in the [1945 IMT Charter (Nuremberg)] annexed to the Agreement for the Establishment of an International Military Tribunal. 
United States, District Court, Central District, California, Handel case, Judgment, 31 January 1985.
[emphasis in original]
However, the Court also stated: “By contrast, crimes against humanity include ‘murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population’.” 
United States, District Court, Central District, California, Handel case, Judgment, 31 January 1985.
(emphasis in original)
The Hamdan case in 2006 involved a Yemeni national in custody at the US internment facility in Guantanamo Bay, Cuba, who petitioned for writs of habeas corpus and mandamus to challenge the Executive’s intended means of prosecuting a charge of conspiracy to commit offences triable by a military commission. In a majority opinion, the US Supreme Court found that the military commissions convened to try Hamdan violated in structure and procedure both the Uniform Code of Military Justice (UCMJ) and the 1949 Geneva Conventions. With regard to whether the crime of “conspiracy” is a recognized violation of the laws of war, Justice Stevens, joined by Justices Souter, Ginsberg and Breyer, held:
[N]one of the major treaties governing the law of war identifies conspiracy as a violation thereof. And the only “conspiracy” crimes that have been recognized by international war crimes tribunals (whose jurisdiction often extends beyond war crimes proper to crimes against humanity and crimes against the peace) are conspiracy to commit genocide and common plan to wage aggressive war, which is a crime against the peace and requires for its commission actual participation in a “concrete plan to wage war.” 1 Trial of the Major War Criminals Before the International Military Tribunal: Nuremberg, 14 November 1945-1 October 1946, p 225 (1947). The International Military Tribunal at Nuremberg, over the prosecution’s objections, pointedly refused to recognize as a violation of the law of war conspiracy to commit war crimes, see, e.g., 22 id., at 469, and convicted only Hitler’s most senior associates of conspiracy to wage aggressive war, see S. Pomorski, Conspiracy and Criminal Organization, in the Nuremberg Trial and International Law 213, 233–235 (G. Ginsburgs & V. Kudriavtsev eds. 1990). As one prominent figure from the Nuremberg trials has explained, members of the Tribunal objected to recognition of conspiracy as a violation of the law of war on the ground that “[t]he Anglo-American concept of conspiracy was not part of European legal systems and arguably not an element of the internationally recognized laws of war.” T. Taylor, Anatomy of the Nuremberg Trials: A Personal Memoir 36 (1992); see also id., at 550 (observing that Francis Biddle, who as Attorney General prosecuted the defendants in Quirin, thought the French judge had made a “‘persuasive argument that conspiracy in the truest sense is not known to international law’”). 
United States, Supreme Court, Hamdan case, Judgment, Part V, 29 June 2006.

Venezuela
In 2004, in the Recao case, the Constitutional Chamber of Venezuela’s Supreme Tribunal of Justice was called upon to decide on an appeal against the judgment of the Court Martial, which dismissed the constitutional complaint of the defendant regarding the failure of the Military Prosecutor to request the termination of the proceedings. The tribunal held:
War crimes, which were first defined in the Charter of the International Military Tribunal of Nuremberg of 8 August 1945 [1945 IMT Charter (Nuremberg)], are not always connected to the offence of military rebellion.
These crimes, according to the [1998] Rome Statute of the International Criminal Court, must be committed as part of a plan or policy or on a large-scale and, broadly speaking, refer to various acts against persons and objects that include: grave breaches of the Geneva Conventions of 12 August 1949 or other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, in the case of international armed conflicts; or serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, among others, in the case of an armed conflict not of an international character, and not including situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. …
These war crimes can initiate with a military rebellion but this does not mean that every military rebellion … will result in … a war crime. Thus, it cannot be said that a military rebellion is always an offence connected with war crimes. 
Venezuela, Supreme Tribunal of Justice, Recao case, Judgment, 27 July 2004, Section V, pp. 10–11.
[emphasis in original]
Yugoslavia, Federal Republic of
In a written opinion in the Trajković case in 2001, the International Prosecutor for the Office of the Public Prosecutor of Kosovo (Federal Republic of Yugoslavia) referred to Articles 146 and 147 of the 1949 Geneva Convention IV and stated:
The cited provisions of Geneva Convention IV establish that, in general, a person commits a crime of war only if:
(1) during armed conflict, whether or not international,
(2) he commits a prohibited act against a protected person or population.
… ICTY jurisprudence makes explicit the third element, a nexus between the armed conflict and the prohibited act. 
Yugoslavia, Federal Republic of, International Prosecutor for the Office of the Public Prosecutor of Kosovo, Trajković case, Opinion on Appeals of Convictions, 30 November 2001, Section II(D).

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Australia
In its declaration upon ratification of the 1998 ICC Statute in 2002, Australia stated:
Australia further declares its understanding that the offences in Article 6, 7 and 8 [related to Genocide, Crimes Against Humanity and War Crimes, respectively] will be interpreted and applied in a way that accords with the way they are implemented in Australian domestic law. 
Australia, Declaration included in Australia’s Instrument of Ratification to the Rome Statute of the International Criminal Court, 1 July 2002 http://www.help.cicr.org/IHL.nsf/NORM/A255319F58A44982412566E100540E5E?OpenDocument (last accessed on 17 February 2010).

Belgium
In 1973, during a debate in the Third Committee of the UN General Assembly, the representative of Belgium stated that “with regard to the definition of the concept of war crimes and crimes against humanity, his Government based its position on the Charter of the International Military Tribunal, Nuremberg, and the body of judicial practice to which it had given rise”. 
Belgium, Statement before the Third Committee of the UN General Assembly, UN Doc. A/C.3/SR.2022, 9 November 1973, § 40.

In an explanatory memorandum submitted in 1992 to the Belgian Senate in the context of the adoption of the Draft Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols, it was stated that the law reserved the application of other criminal provisions applicable to other breaches of the conventions to which it referred. It further stated that, because of this reservation, “the repression of all violations of the laws and customs of war is covered by ‘ordinary’ national penal law” insofar as the violations correspond to offences punishable under national (penal) law. 
Belgium, Senate, Explanatory Memorandum, Draft Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols, 1990–1991 Session, Doc. 1317-1, 30 April 1991, p. 6.

An early draft of this law was amended in order to include acts committed in the context of non-international conflicts that corresponded to the grave breaches of the 1949 Geneva Conventions and the 1977 Additional Protocol I. Among the reasons for the inclusion of acts committed in the context of non-international conflicts, members of the Senate who submitted the amendment mentioned, inter alia, that international law did not prohibit such criminalization. The amendment was ultimately supported by the Belgian government, which noted that although the proposals “go further than required by the Conventions and Protocols, they remain within the scope of the – admittedly extensive – application of an international instrument ratified by Belgium”. 
Belgium, Senate, Complementary report submitted on behalf of the Commission of Justice, Draft Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols, 1991–1992 Extraordinary Session, Doc. 481-5, 22 December 1992, pp. 2 ff.

The Report on the Practice of Belgium notes that the Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols shows that Belgium believes that the grave breaches aimed at by the 1949 Geneva Conventions and the 1977 Additional Protocol I are also war crimes when committed in a non-international armed conflict. It further states that the above-mentioned reservation, as well as Belgian practice in the aftermath of the Second World War, when courts, lacking specific legislation in this regard, applied national law to “war crimes”, show that it is Belgium’s opinio juris that the term “war crime” can be a broader one than the technical term of “grave breach” in the meaning of the 1949 Geneva Conventions and the 1977 Additional Protocol I. 
Report on the Practice of Belgium, 1997, Chapter. 6.5.

Chile
According to the Report on the Practice of Chile, the provisions of Chile’s Code of Military Justice dealing with certain offences directed against protected persons and objects define what the national law “considers to be crimes of war”. The report further states:
This definition predates the Geneva Conventions of 1949 and is fundamentally based on the Law of The Hague that originated in the Peace Conferences of 1899 and 1907 … The definitions laid down by the Code of Military Justice are understood to form part of customary international law. 
Report on the Practice of Chile, 1997, Chapter 6.5.

China
In 1998, during a debate in the Sixth Committee of the UN General Assembly on the establishment of an international criminal court, China stated:
As far as war crimes are concerned, China has doubts about the inclusion of war crimes in domestic armed conflicts in the Court’s jurisdiction, because provisions in international law concerning war crimes in such conflicts are still incomplete … The definition of war crimes in domestic armed conflicts in the present [ICC] Statute has far exceeded not only customary international law but also the provisions of [the 1977 Additional Protocol II]. 
China, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/ 53/SR.9, 21 October 1998, § 36.

France
In 1950, during a debate in the Sixth Committee of the UN General Assembly on the Nuremberg Principles established by the International Law Commission, France stated:
The offences listed by the [IMT (Nuremberg)] were based on already existing principles of international law; they were principles “recognized” by the [1945 IMT Charter (Nuremberg)], as was stated in the General Assembly resolution, and not principles “laid down” by that charter.
… The list of war crimes in article 6(b) of the [1945 IMT Charter (Nuremberg)] was based on the definitions of traditional international law contained in the Hague Conventions of 1907, the Treaty of Versailles of 1919 and the Geneva Conventions of 1929. Thus, the concept of war crimes as it was recognized in the [1945 IMT Charter (Nuremberg)] had already existed in 1939. 
France, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/ SR.236, 9 November 1950, §§ 9–10.

In a speech before the French National Consultative Commission on Human Rights in 1998, the Director of the Legal Department of the French Ministry of Foreign Affairs noted with regard to the definition of war crimes to be included in the 1998 ICC Statute that the provisions in the “war crimes” section covered what the French referred to as the laws of war, namely the 1949 Geneva Conventions and their 1977 Additional Protocols. He added that it was agreed that in practice the Statute would reflect existing law. 
France, National Consultative Commission on Human Rights, Statement by the Director of the Legal Department of the Ministry of Foreign Affairs, 22 April 1998, p. 3.

In 1998, the French National Consultative Commission on Human Rights recommended:
As regards the definition of war crimes, endorsement must be made [in the 1998 ICC Statute] of the grave breaches of international humanitarian law committed in international as well as in internal armed conflicts, as defined by the Geneva Conventions and their two additional Protocols. 
France, National Consultative Commission on Human Rights, Opinion on the establishment of an international criminal court, 14 May 1998, § 3.

In 1998, at the UN Conference of Plenipotentiaries on the Establishment of an International Criminal Court, the French Minister of Foreign Affairs declared:
Some States are entirely opposed to the idea that the definition of war crimes may apply to internal conflicts. But accepting this restriction would be a retrograde step. Here in Rome we must find a workable solution to this problem. 
France, Minister of Foreign Affairs, Statement at the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 June 1998.

Germany
In 1993, during a debate in the Sixth Committee of the UN General Assembly, Germany stated:
Articles 22 and 26 of the draft statute [for an international criminal court] contained criteria for jurisdiction. First, the court would have jurisdiction over the crimes defined in international treaties as set forth in article 22 [containing a list of crimes including, inter alia, genocide, grave breaches of the 1949 Geneva Conventions and the 1977 Additional Protocol I, apartheid and related crimes, crimes against internationally protected persons and hostage-taking and related crimes]. The treaties listed in article 22 covered most of the crimes which called for international prosecution. It was somewhat surprising, however, that the crime of torture as defined in article 1 of the [1984 Convention against Torture] was not included in the list. Second, the court would be competent to try crimes under general international law as stipulated in Article 26(2)(a) of the draft statute [providing for the possibility of special acceptance of jurisdiction by States in respect of other international crimes not covered by Article 22]. The German Government shared the Working Group’s concern that the prosecution of certain crimes which were outlawed by international customary law but not covered by article 22 might be excluded from the jurisdiction of the Court. However, the principle nullum crimen sine lege required clarity and precision in the definition of crimes in the statute. 
Germany, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/48/SR.19, 27 October 1993, § 4.

Islamic Republic of Iran
The Report on the Practice of the Islamic Republic of Iran notes that, with regard to the Iran-Iraq war, the Islamic Republic of used the terms “violating international law” and “crimes” interchangeably when referring to acts committed in violation of IHL. 
Report on the Practice of the Islamic Republic of Iran, 1997, Chapter 6.5.

Mexico
In 2010, during a debate in the UN Security Council on children in armed conflict, Mexico’s Secretary of Foreign Affairs stated: “Serious violations of fundamental principles and norms of international humanitarian law are war crimes” 
Mexico, Statement by the Secretary of Foreign Affairs of Mexico before the UN Security Council, 6341th meeting, UN Doc. S/PV.6341, 16 June 2010, p. 13.

Netherlands
The Report on the Practice of the Netherlands, referring to an interview with a legal adviser of the Ministry of Justice of the Netherlands, states:
Section 8 of the Criminal Law in Wartime Act [as amended, according to which “violations of the laws and customs of war” are offences] cannot be construed as a definition of war crimes. A violation [of IHL other than a grave breach] has to be as severe as is required for a grave breach in order to be a war crime. The Ministry of Justice does not make a distinction between international and internal armed conflicts regarding the grave breaches regime.  
Report on the Practice of the Netherlands, 1997, Interview with a legal advisor at the Ministry of Justice, 18 March 1997, Chapter 6.5.

Republic of Korea
The Report on the Practice of the Republic of Korea refers to the list of war crimes provided for in the Military Regulation 187 and states: “Other acts not illustrated here can be classified as war crimes. This means that definitions of war crimes in the Geneva Conventions become customary.” 
Report on the Practice of the Republic of Korea, 1997, Chapter 6.5.

United Kingdom of Great Britain and Northern Ireland
In 2003, in a written reply to a question in the House of Commons, the UK Minister of State for Defence stated:
The offences contained in the Statute of the International Criminal Court (ICC) reflect international law provisions that were already applicable to the conduct of United Kingdom of Great Britain and Northern Ireland forces in any theatre of engagement. The ICC Statute does not therefore impose new conditions.
The consequences for our forces of UK ratification of the ICC Statute were carefully examined in preparation for the ICC Act 2001. Under the Statute, investigation and, if necessary prosecution of any allegations of war crimes, crimes against humanity or genocide by a UK national would be carried out by the UK. The Court would intervene only if it determined that a state was unwilling or unable to pursue a particular case, but it is inconceivable that the UK would ever be unable or unwilling to investigate or take appropriate action. 
United Kingdom, House of Commons, Written answer by the Minister of State for Defence, Hansard, 28 January 2003, Vol. 398, Written Answers, col. 836W.

United States of America
In 1991, in a diplomatic note to Iraq, the US reminded Iraq: “Under International Law, violations of the Geneva Conventions, the Geneva [Gas] Protocol of 1925, or related International Laws of armed conflict are war crimes.” 
United States, Department of State, Diplomatic Note to Iraq, Washington, 19 January 1991, annexed to Letter dated 21 January 1991 to the President of the UN Security Council, UN Doc. S/22122, 21 January 1991, Annex I, p. 2.

In 1993, during a debate in the UN Security Council following the adoption of the 1993 ICTY Statute, the United States stated:
It is understood that the “laws and customs of war” referred to in Article 3 [of the 1993 ICTY Statute which aims at the prosecution of “violations of the laws and customs of war”] include all obligations under humanitarian law agreements in force in the territory of the former Yugoslavia at the time the acts were committed, including common article 3 of the 1949 Geneva Conventions, and the 1977 Additional Protocols to these Conventions. 
United States, Statement before the UN Security Council, UN Doc. S/PV.3217, 25 May 1993, p. 15.

According to the Report on US Practice, the United States considers any violation of the law of war a war crime, provided the accused had the requisite criminal intent at the time of his or her participation in the violation. The report adds that conspiracy to violate the laws of war, inciting violations and aiding and abetting violations of the laws of war are also punishable as war crimes. 
Report on US Practice, 1997, Chapter 6.6.

In March 2003, the US Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, wrote a memorandum to the General Counsel of the Department of Defense, which provided a legal analysis governing the military interrogation of alien “unlawful combatants” held outside the United States. The memorandum stated in part:
Section 2441 of Title 18 [US Code Section 2441 - War Crimes] criminalizes the commission of war crimes by U.S. nationals and members of the U.S. Armed Forces. It criminalizes such conduct whether it occurs inside or outside the United States, including conduct within the special maritime and territorial jurisdiction. See id. §2441(a). Subsection (c) of section 2441 defines “war crimes” as (1) grave breaches of any of the Geneva Conventions; (2) conduct prohibited by certain provisions of the Hague Convention IV, Hague Convention IV Respecting the Laws and Customs of War on Land, Oct.18, 1907, Stat. 2277; or (3) conduct that constitutes a violation of common Article 3 of the Geneva Conventions. We have previously concluded that this statute does not apply to conduct toward the members of al Qaeda and the Taliban. See Treaties and Laws Memorandum at 8–9. We reached this conclusion because we found al Qaeda to be a non governmental terrorist organization whose members are not legally entitled to the protections of GPW [1949 Geneva Convention III]. Since its members cannot be considered to be POWs [prisoners of war] under the Convention, conduct toward members of al Qaeda could not constitute a grave breach of the Geneva Conventions. See 18 U.S.C. § 2441(c)(I). We further found that common Article 3 of the Geneva Conventions covers either traditional wars between state parties to the convention or non-international civil wars, but not an international conflict with a non-governmental terrorist organization. As a result, conduct toward members of al Qaeda could not constitute a violation of common Article 3, see Treaties and Law Memorandum at 9, and thus could not violate Section 2441 (c)(3).
We also concluded that the President had reasonable grounds to find that the Taliban had failed to meet the requirements for POW status under GPW. See Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General, Re: Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949 at 3 (Feb. 7, 2002). On February 7, 2002, the President determined that these treaties did not protect either the Taliban or al Qaeda …
Thus, section 2441 is inapplicable to conduct toward members of the Taliban or al Qaeda. We further note that the Treaties and Law Memorandum is the Justice Department’s binding interpretation of the War Crimes Act, and it will preclude any prosecution under it for conduct toward members of the Taliban and al Qaeda. See Letter for William H. Taft, Legal Adviser, Department of State, from John C. Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special Counsel, Office of Legal Counsel (Jan. 14, 2002).

The Rome Statute makes torture a crime subject to the ICC’s jurisdiction in only two contexts. Under article 7 of the Rome Statute, torture may fall under the ICC’s jurisdiction as a crime against humanity if it is committed as “part of a widespread and systematic attack directed against any civilian population.” Here, however, the interrogation of al Qaeda or Taliban operatives is part of an international armed conflict against a terrorist organization; not an attack on a civilian population. Indeed, our conflict with al Qaeda does not directly involve any distinct civilian population. Rather, al Qaeda solely constitutes a group of illegal belligerents who are dispersed around the world into cells, rather than being associated with the civilian population of a nation-state. Under article 8 of the Rome Statute, torture can fall within the ICC’s jurisdiction as a war crime. To constitute a war crime, torture must be committed against “persons or property protected under the provisions of the relevant Geneva Conventions,” Rome Statute, art. 8. As we have explained, neither members of the al Qaeda terrorist network nor Taliban soldiers are entitled to the legal status of prisoners of war under the GPW. See Treaties and Laws Memorandum at 8 (Jan. 22, 2Q02); see also United States v. Lindh, 212 F.2d 541, 556-57 (E.D. Va. 2002). Interrogation of al Qaeda or Taliban members therefore cannot constitute a war crime because article 8 of the Rome Statute applies only to those protected by the Geneva Conventions. 
United States, Department of Justice, Office of Legal Counsel, John C. Yoo, Deputy Assistant Attorney General, Memorandum for William J. Haynes II, General Counsel of the Department of Defense, Military Interrogation of Alien Unlawful Enemy Combatants Held Outside the United States, 14 March 2003.

In September 2006, the US President spoke before an invited audience at the White House to announce the creation of new military commissions to try suspected terrorists, during which he also announced the transfer of 14 detainees from the Central Intelligence Agency (CIA) detention program (thus publicly revealing that such a program existed) into military custody:
Some may ask: Why are you acknowledging this [CIA] program now? There are two reasons why I’m making these limited disclosures today. First, we have largely completed our questioning of the men – and to start the process for bringing them to trial, we must bring them into the open. Second, the Supreme Court’s recent decision [Hamdan v. Rumsfeld, 548 US 557 (2006)] has impaired our ability to prosecute terrorists through military commissions, and has put in question the future of the CIA program. In its ruling on military commissions, the Court determined that a provision of the Geneva Conventions known as “Common Article Three” applies to our war with al Qaeda. This article includes provisions that prohibit “outrages upon personal dignity” and “humiliating and degrading treatment.” The problem is that these and other provisions of Common Article Three are vague and undefined, and each could be interpreted in different ways by American or foreign judges. And some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act – simply for doing their jobs in a thorough and professional way.
This is unacceptable. Our military and intelligence personnel go face to face with the world’s most dangerous men every day. They have risked their lives to capture some of the most brutal terrorists on Earth. And they have worked day and night to find out what the terrorists know so we can stop new attacks. America owes our brave men and women some things in return. We owe them their thanks for saving lives and keeping America safe. And we owe them clear rules, so they can continue to do their jobs and protect our people.
So today, I’m asking Congress to pass legislation that will clarify the rules for our personnel fighting the war on terror. First, I’m asking Congress to list the specific, recognizable offenses that would be considered crimes under the War Crimes Act – so our personnel can know clearly what is prohibited in the handling of terrorist enemies. Second, I’m asking that Congress make explicit that by following the standards of the Detainee Treatment Act our personnel are fulfilling America’s obligations under Common Article Three of the Geneva Conventions. Third, I’m asking that Congress make it clear that captured terrorists cannot use the Geneva Conventions as a basis to sue our personnel in courts – in U.S. courts. The men and women who protect us should not have to fear lawsuits filed by terrorists because they’re doing their jobs. 
United States, President George W. Bush, White House speech, President Discusses Creation of Military Commissions to Try Suspected Terrorists, 6 September 2006.

Yugoslavia, Socialist Federal Republic of
In an order issued in 1991, the Chief of General Staff of the Yugoslav People’s Army (YPA) stated: “War crimes and other grave breaches of norms of law on warfare are serious criminal offences.” 
Yugoslavia, Socialist Federal Republic of, Chief of General Staff of the Yugoslav People’s Army, Legal Department, Order No. 985-1/91, 3 October 1991, § 2.

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UN General Assembly
In a resolution adopted in 2006 on the status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts, the UN General Assembly:
Acknowledging the fact that the Rome Statute of the International Criminal Court, which entered into force on 1 July 2002, includes the most serious crimes of international concern under international humanitarian law, and that the Statute, while recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for such crimes, shows the determination of the international community to put an end to impunity for the perpetrators of such crimes and thus to contribute to their prevention. 
UN General Assembly, Res. 61/30, 4 December 2006, preamble, adopted without a vote.

UN Commission on Human Rights
In resolutions adopted in 1982 and 1983, the UN Commission on Human Rights declared: “Israel’s continuous grave breaches of the Geneva Convention relative to the Protection of Civilian Persons in Time of War … and of the Additional Protocols … are war crimes.” 
UN Commission on Human Rights, Res. 1982/1, 11 February 1982, § 3, voting record: 32-3-7; Res. 1983/1, 15 February 1983, § 3, voting record: 29-1-13.

In a resolution adopted in 2004 on the question of the violation of human rights in the occupied Arab territories, including Palestine, the UN Commission on Human Rights:
Taking into consideration the provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949 (Fourth Geneva Convention), the provisions of Additional Protocol I thereto of 1977 and the Hague Convention IV, of 18 October 1907, and Annexed Regulations respecting the Laws and Customs of War on Land,
Recalling resolutions of the Security Council, the General Assembly and the Commission on Human Rights relating to the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem, since the 5 June 1967 war,
Reaffirming the applicability of the Fourth Geneva Convention to the Palestinian territories occupied since the June 1967 war, including East Jerusalem,

6. Strongly condemns once again the establishment of Israeli settlements and other related activities in the Occupied Palestinian Territory, including East Jerusalem, such as the construction of new settlements and the expansion of the existing ones, land confiscation, biased administration of water resources and the construction of bypass roads, which not only constitute grave violations of human rights and international humanitarian law, especially article 49 of the Fourth Geneva Convention and Additional Protocol I thereto, according to which such violations are categorized as war crimes …

12. Also strongly condemns acts that consist of imposing collective punishments, military siege of Palestinian territories, isolating Palestinian towns and villages from each other by military roadblocks used as a trap to kill Palestinians, demolishing houses and levelling agricultural lands, as these practices contribute, together with other factors, to the acts of violence that have prevailed in the region for over three and a half years, and calls upon the Government of Israel immediately to put an end to these practices and to lift its military siege of Palestinian towns and villages and its military roadblocks, and affirms anew that such collective punishments are prohibited under international law, as they constitute grave violations of the provisions of the Fourth Geneva Convention and Additional Protocol I thereto, and are also war crimes;

15. Affirms anew that the demolitions carried out by the Israeli occupying forces of at least 30,000 Palestinian houses, facilities and property constitute grave violations of articles 33 and 53 of the Fourth Geneva Convention and that acts of levelling farmlands, uprooting trees and destroying what is left of the Palestinian infrastructure constitute a form of collective punishment to which Palestinians are subjected, grave violations of the provisions of international humanitarian law and war crimes according to international law. 
UN Commission on Human Rights, Res. 2004/10, 15 April 2004, preamble and §§ 6, 12 and 15, voting record: 31-7-15.

UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992)
In 1994, in its final report on grave breaches of the Geneva Conventions and other violations of IHL committed in the former Yugoslavia, the UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992) noted: “There does not appear to be a customary international law applicable to internal armed conflicts which includes the concept of war crimes.” Referring to common Article 3 of the 1949 Geneva Conventions, the 1977 Additional Protocol II and Article 19 of the 1954 Hague Convention, the Commission noted that these provisions did not use the terms “grave breaches” or “war crimes”. It added that “the content of customary law applicable to internal armed conflict is debatable”, and as a result, “in general, unless the parties to an internal armed conflict agree otherwise, the only offences committed in internal armed conflict for which universal jurisdiction exists are ‘crimes against humanity’ and genocide, which apply irrespective of the conflicts’ classification”. 
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, UN Doc. S/1994/674, 27 May 1994, §§ 42 and 52.

International Law Commission
In 1993, the International Law Commission’s Working Group on a draft statute for an international criminal court commented with regard to Article 22 of the draft statute:
Subparagraph (b) of article 22 [which includes grave breaches of the 1949 Geneva Conventions and the 1977 Additional Protocol I in the list of crimes defined by treaties] does not include [the 1977 Additional Protocol II] because this protocol contains no provision concerning grave breaches. 
International Law Commission, Working Group on a draft statute for an international criminal court, Report, Yearbook of the International Law Commission, 1993, Vol. II, Part Two, UN Doc. A/CN.4/ SER.A/1993/Add.1 (Part 2), Commentary on Article 22, § 3, p. 107.

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International Criminal Court
In its Decision on the Confirmation of Charges in the Lubanga case in 2007, the ICC Pre-Trial Chamber stated the following on the general requirements of war crimes:
286. A war crime is committed if there is a nexus between the criminal act in question and the armed conflict … the Elements of Crimes require that the conduct in question took place in the context of and was associated with an armed conflict.
287. In this respect, the Chamber follows the approach of the jurisprudence of the ICTY, which requires the conduct to have been closely related to the hostilities occurring in any part of the territories controlled by the parties to the conflict. The armed conflict need not be considered the ultimate reason for the conduct and the conduct need not have taken place in the midst of battle. Nonetheless, the armed conflict must play a substantial role in the perpetrator’s decision, in his or her ability to commit the crime or in the manner in which the conduct was ultimately committed.
288. Having established the existence of an armed conflict, the Chamber observes that in order for a particular crime to qualify as a war crime within the meaning of article 8(2)(b)(xxvi) and 8(2)(e)(vii) of the [1998 ICC] Statute, at this stage, the Prosecution must establish that there are substantial grounds to believe that there is sufficient and clear nexus between that crime and the conflict. In other words, it must be proved that there are substantial grounds to believe that the alleged crimes were closely related to the hostilities. 
ICC, Lubanga case, Decision on the Confirmation of Charges, 29 January 2007, §§ 286–288.

International Criminal Tribunal for Rwanda
In its judgment in the Akayesu case in 1998, the ICTR stated:
For the purposes of an international criminal Tribunal which is trying individuals, it is not sufficient merely to affirm that Common Article 3 [of the 1949 Geneva Conventions] and parts of Article 4 of Additional Protocol II – which comprise the subject-matter jurisdiction of Article 4 of the [1994 ICTR] Statute – form part of international customary law. Even if Article 6 of the Statute provides for individual criminal responsibility as pertains to Articles 2, 3 and 4 of the Statute, it must also be shown that an individual committing serious violations of these customary norms incurs, as a matter of custom, individual criminal responsibility thereby. Otherwise, it might be argued that these instruments only state norms applicable to States and Parties to a conflict, and that they do not create crimes for which individuals may be tried. 
ICTR, Akayesu case, Judgment, 2 September 1998, § 611.

In its judgment in the Rutaganda case in 1999, the ICTR stated:
Furthermore, the Trial Chamber in the Akayesu Judgement concluded that violations of these norms would entail, as a matter of customary international law, individual responsibility for the perpetrator. It was also recalled that as Rwanda had become a party to the 1949 Geneva Conventions and their 1977 Additional Protocols, on 5 May 1964 and 19 November 1984, respectively, these instruments were in any case in force in the territory of Rwanda in 1994, and formed part of Rwandan law. Thus, Rwandan nationals who violated these international instruments incorporated into national law, including those offences as incorporated in Article 4 of the Statute, could be tried before the Rwandan national courts. 
ICTR, Rutaganda case, Judgment, 6 December 1999, § 88.

In its judgment in the Musema case in 2000, the ICTR stated:
The Chamber therefore concludes that, at the time the crimes alleged in the Indictment were perpetrated, persons were bound to respect the provisions of the 1949 Geneva Conventions and their 1977 Additional Protocols, as incorporated in Article 4 of the [1994 ICTR] Statute. Violations thereof, as a matter of custom and convention, attracted individual criminal responsibility and could result in the prosecution of the authors of the offences. 
ICTR, Musema case, Judgment, 27 January 2000, § 242.

In its judgment in the Bagilishema case in 2001, the ICTR Trial Chamber noted with respect to Article 4 of the 1994 ICTR Statute (Violations of common Article 3 common of the 1949 Geneva Conventions and of the 1977Additional Protocol II):
98. Jurisprudence of this Tribunal has established that Common Article 3 and Additional Protocol II were applicable as a matter of custom and convention in Rwanda in 1994. Consequently, at the time the events in the Indictment are said to have taken place, persons who violated these instruments would incur individual criminal responsibility and could be prosecuted therefore.
4.2 Material Requirements
99. Common Article 3 and Additional Protocol II afford protection to, inter alia, civilians, non-combatants and persons placed hors de combat, in the context of internal armed conflicts. Such conflicts must meet a minimum threshold requirement to fall within the ambit of these instruments. The lesser threshold is that of Common Article 3 which simply applies to armed conflicts “not of an international character”. This rules out acts of banditry and internal disturbances but covers hostilities that involve armed forces organized to a greater or lesser extent. To be covered by Common Article 3, the hostilities must take place within the territory of a single State …
100. Additional Protocol II offers a higher threshold of applicability inasmuch it applies to conflicts which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. Again, situations ruled out as not being armed conflicts are “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.” Considering the higher threshold of applicability of Additional Protocol II, it is clear that a conflict that meets its material requirements of applicability will ipso facto meet those of Common Article 3.
101. Whether a conflict meets the material requirements of the above instruments is a matter of objective evaluation of the organization and intensity of the conflict and of the forces opposing one and another. Once the material requirements of Common Article 3 or Additional Protocol II have been met, these instruments will immediately be applicable not only within the limited theatre of combat but also in the whole territory of the State engaged in the conflict. Consequently, the parties engaged in the hostilities are bound to respect the provisions of these instruments throughout the relevant territory.
102. For a violation to be covered by Article 4 of the Statute it must be deemed serious. On this, the Chamber follows the definition advanced in Akayesu, in which the Chamber stated that a serious violation is “a breach of a rule protecting important values which must involve grave consequences for the victim”. Regarding the elements of murder, as covered by Article 4(a) of the [1994 ICTR] Statute, the Chamber refers to its definition of murder in 3.2 above [murder as an underlying act of a crime against humanity].
103. Common Article 3 and Additional Protocol II afford protection primarily to victims or potential victims of armed conflicts. In the case of Common Article 3, these individuals are persons taking no active part in the hostilities and, under Additional Protocol II, the protection is extended to all persons who do not take or who have ceased to take part in the hostilities. In the present matter, it is clear that the victims of the events alleged are unarmed men, women, and children, all civilians.
104. To take a direct or active part in the hostilities covers acts which by their very nature or purpose are likely to cause harm to personnel and equipment of the armed forces. In assessing whether or not an individual can be classed as being a civilian, the overall humanitarian purpose of the Geneva Conventions and their Protocols should be taken into account. To give effect to this purpose, a civilian should be considered to be any one who is not a member of the “armed forces”, as described above, or any one placed hors de combat.
105. For a crime to constitute a serious violation of Common Article 3 and Additional Protocol II, there must be a nexus between the offence and the armed conflict. The “nexus” requirement is met when the offence is closely related to the hostilities or committed in conjunction with the armed conflict. The Appeals Chamber in Tadic held that it is “sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict”. As such, it is not necessary that actual armed hostilities have broken out in Mabanza commune and Kibuye Prefecture for Article 4 of the [1994 ICTR] Statute to be applicable. Moreover, it is not a requirement that fighting was taking place in the exact time-period when the acts the offences alleged occurred were perpetrated. The Chamber will determine whether the alleged acts were committed against the victims because of the conflict at issue. 
ICTR, Bagilishema case, Judgment, 7 June 2001, §§ 98–105.

In the Semanza case before the ICTR in 1999, the accused, Laurent Semanza, who was a member of the Central Committee of the Mouvement républicain national pour le développement et la démocratie (MRND), was charged with committing various crimes against Tutsi civilians in the Bicumbi and Gikoro communes, Rwanda, during the period 1 April and 31 July 1994. These crimes included genocide, crimes against humanity and serious violations of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II. 
ICTR, Semanza case, Third Amended Indictment, 12 October 1999, § 3.19, Counts 1–14.

In its judgment in 2003, the Trial Chamber found the accused guilty of complicity to commit genocide, as well as various crimes against humanity, including rape, torture, murder and extermination. He was, however, found not guilty on any of the three counts related to serious violations of common Article 3 common of the 1949 Geneva Conventions and of the 1977 Additional Protocol II. Although the Trial Chamber found that a number of the acts of the accused had constituted serious violations of common Article 3, the Trial Chamber declined to enter convictions for these acts due to the application of the law on cumulative convictions. He was sentenced to a total of 24 years and 6 months of imprisonment. 
ICTR, Semanza case, Judgment, 15 May 2003, §§ 553 and 590.

In considering the nature of the crimes alleged to have been committed in serious violations of common Article 3, the Trial Chamber’s presiding judge, Judge Yakov Ostrovsky, in a separate opinion, commented on the need to establish a “nexus” between an armed conflict and the alleged crime in order to determine whether it can be classed as a war crime:
8. The fundamental question that must be answered is whether these civilians [against whom crimes had been committed] became the victims, not only of genocide and of certain crimes against humanity, but also of the armed conflict.

14. … [T]he jurisprudence of the ICTR and ICTY use the term “nexus” as a main requirement in order to determine whether crimes committed during an armed conflict constitute war crimes. It has been the position of this Tribunal and the ICTY that the nexus requirement is met if the alleged offence is “closely related to the hostilities”, or is “committed in conjunction with armed conflict”, or is “a part of it.” The wording could be different, but the main criterion is to establish that the offence is committed as a result of a violation of the laws or customs of war during an internal armed conflict. This is the real meaning of the term “nexus”.
15. As the Judgment in Kayishema and Ruzindana makes clear:
the term “nexus” should not be understood as something vague and indefinite. A direct connection between the alleged crimes, referred to in the Indictment, and the armed conflict should be factually established. No test therefore can be defined in abstracto.
16. For example, in Rutaganda, it was not sufficient for the Prosecutor to simply allege in a general manner that the Interahamwe orchestrated massacres as part of their support for the Rwandan Armed Forces and that, ipso facto, the acts of the Accused, who held a leadership position in that organization, also formed part of this support. Indeed, even though the Chamber accepted that there was a link between the genocide and the armed conflict, the Chamber still demanded proof beyond a reasonable doubt that the Accused’s specific acts were committed in conjunction with the armed conflict.
17. The Trial Chamber, in Akayesu, did not find that the accused’s acts were committed in conjunction with the armed conflict even though he provided “limited assistance” to the military on their arrival in Taba commune by allowing them to use his office, setting up radio communications, and providing reconnaissance.
18. These examples in the Tribunal’s jurisprudence clearly demonstrate that even in the cases when an accused had a minor connection to the military or one of the warring parties, a nexus is not established automatically.
19. In the Judgment, the Majority enumerates the Accused’s criminal acts. Such an approach is not justified without showing the nexus between each criminal act and the armed conflict. The Trial Chamber in Tadic stated that: “For an offence to be a violation of international humanitarian law, [the] Trial Chamber needs to be satisfied that each of the alleged acts was in fact closely related to the hostilities.”
20. The same idea is reflected by the Appeals Chamber in Akayesu, when it was recognized that the main requirement is the existence of a “close nexus” between a violation and the armed conflict.
21. Therefore, at the threshold, it must first be established whether the genocidal massacres at the three sites and the alleged crimes committed against Rusanganwa and Victims A and B constitute war crimes or, in other words, whether there is a nexus between these crimes and the armed conflict. 
ICTR, Semanza case, Judgment, Separate Opinion of Judge Yakov Ostrovsky, 15 May 2003, §§ 8 and 14–21.

In its judgment in 2005, the Appeals Chamber considered the prosecution’s claim that the Trial Chamber had misapplied the law on cumulative convictions in its failure to enter convictions for various acts that were found to have constituted serious violations of common Article 3:
368. The jurisprudence on cumulation of convictions is settled. Cumulative convictions “under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other. An element is materially distinct from another if it requires proof of a fact not required by the other.” In Rutaganda, the Appeals Chamber considered the question of whether cumulative convictions could be entered on the basis of the same set of facts for serious violations of Common Article 3 to the Geneva Conventions and of Additional Protocol II (Article 4 of the [1994 ICTR] Statute), genocide (Article 2 of the Statute) and crimes against humanity (Article 3 of the Statute). The Appeals Chamber stated that convictions under Article 4 of the Statute for “war crimes” had a materially distinct element not required for the convictions on genocide and crimes against humanity, “namely the existence of a nexus between the alleged crimes and the armed conflict satisfying the requirements of common Article 3 of the Geneva Conventions and Article 1. of Additional Protocol II.” It added that a conviction for genocide and crimes against humanity each required proof of materially distinct elements not required under Article 4, namely proof of specific intent (dolus specialis) for genocide, and proof of a widespread or systematic attack against a civilian population for crimes against humanity.
369. In the present case, convictions were not entered under Article 4 of the Statute due to apparent ideal concurrence with complicity to commit genocide (Count 3) and crimes against humanity (Counts 10, 11 and 12). In the opinion of the Appeals Chamber this constitutes an error. Simultaneous convictions are permissible for war crimes, crimes against humanity and complicity to commit genocide as each has a materially distinct element. The Appellant’s conviction for complicity to commit genocide was based on his aiding and abetting principal perpetrators who killed Tutsi because of their ethnicity. As noted earlier, the mens rea for complicity in genocide, for those forms of complicity amounting to aiding and abetting, is knowledge of the specific intent of the perpetrator(s). The Appellant’s convictions for crimes against humanity necessitated proof of a widespread or systematic attack against a civilian population, whereas convictions for war crimes require that the offences charged be closely related to the armed conflict. In the Trial Chamber’s opinion, this nexus was clearly established.
370. In the view of the Appeals Chamber, the Trial Chamber erred when it failed to enter convictions for serious violations of Common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II thereto under Count 7 (for having aided and abetted the intentional murders committed at Musha church and Mwulire hill), and under Count 13 (for having instigated the rape and torture of Victim A and murder of Victim B, and for having committed torture and intentional murder of Rusanganwa). 
ICTR, Semanza case, Judgment on Appeal, 20 May 2005, §§ 368–370.

The Appeals Chamber subsequently reversed the acquittals and entered convictions for serious violations of common Article 3 in respect of Count 7 (for ordering murder and aiding and abetting murder) and in respect of Count 13 (for instigating rape and torture, for murder and for committing torture and intentional murder). The Appeals Chamber also found that the Trial Chamber had erred in its finding that the accused did not have the necessary authority to render him liable for ordering the attacks that had resulted in charges of genocide and extermination in respect of the massacre at Musha Church. It therefore entered a conviction for ordering genocide and for ordering extermination in relation to that massacre. 
ICTR, Semanza case, Judgment on Appeal, 20 May 2005, § 364 and IV. Disposition.

The accused’s sentence was subsequently increased to 34 years and 6 months of imprisonment (which incorporated a six-month reduction in sentence ordered by the Trial Chamber for violations of the accused’s fundamental pre-trial rights). 
ICTR, Semanza case, Judgment on Appeal, 20 May 2005, IV. Disposition.

In its judgment in the Rutaganda case in 2003, the ICTR Appeals Chamber stated the following on the nexus requirement of a war crime:
557. In defining the elements required for conviction … the Trial Chamber held that there must be a nexus between the offence and an armed conflict in order to satisfy the material requirements of common Article 3 of the Geneva Conventions and of Article 1 of Additional Protocol II to the Geneva Conventions. According to the Trial Chamber, the nexus requirement means that “the offence must be closely related to the hostilities or committed in conjunction with the armed conflict”. [emphasis added by Appeals Chamber]

569. The Appeals Chamber of the ICTR has not previously endorsed a particular definition of the nexus requirement. The Appeals Chamber of the ICTY has done so twice. The first time, in the Tadic Jurisdiction Decision, the Appeals Chamber stated that the offences had to be “closely related” to the armed conflict, but it did not spell out the nature of the required relation. In the Kunarac Appeal Judgement, it endorsed the same standard. It then provided the following details, which appear relevant to the Prosecution appeal in this case:
58. What ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment – the armed conflict – in which it is committed. It need not have been planned or supported by some form of policy. The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, 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. Hence, if it can be established, as in the present case, that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict. The Trial Chamber’s finding on that point is unimpeachable.
59. In determining whether or not the act in question is sufficiently related to the armed conflict, the Trial Chamber may take into account, inter alia, the following factors: the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties.
570. This Chamber agrees with the criteria highlighted and with the explanation of the nexus requirement given by the ICTY Appeals Chamber in the Kunarac Appeal Judgement. It is only necessary to explain two matters. First, the expression “under the guise of the armed conflict” does not mean simply “at the same time as an armed conflict” and/or “in any circumstances created in part by the armed conflict”. For example, if a non-combatant takes advantage of the lessened effectiveness of the police in conditions of disorder created by an armed conflict to murder a neighbour he has hated for years, that would not, without more, constitute a war crime under Article 4 of the Statute. By contrast, the accused in Kunarac, for example, were combatants who took advantage of their positions of military authority to rape individuals whose displacement was an express goal of the military campaign in which they took part. Second, as paragraph 59 of the Kunarac Appeal Judgement indicates, the determination of a close relationship between particular offences and an armed conflict will usually require consideration of several factors, not just one. Particular care is needed when the accused is a non-combatant.
571. Although the Trial Chamber’s Judgement and the Prosecution’s appeal against it both predated the Kunarac Appeal Judgement, this Chamber understands both the Trial Judgement and the Prosecution’s appeal as resting on an understanding of the nexus requirement consistent with the one just explained. The Appeals Chamber therefore dismisses the Respondent’s contention that the Prosecution is attempting to establish a new definition of the nexus requirement. 
ICTR, Rutaganda case, Judgment on Appeal, 26 May 2003, §§ 557 and 569–571.

In its judgment in the Kamuhanda case in 2004, the ICTR Trial Chamber stated regarding the requirements of Article 4 of the 1994 ICTR Statute (“Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II”):
o Nature of the Conflict
721. The provisions of Common Article 3 and Additional Protocol II, as incorporated in Article 4 of the Statute, are expressly applicable to alleged offences committed within the context of conflicts of a non-international character. Accordingly, the Chamber must address the question whether the 1994 conflict in Rwanda falls within the ambit of these provisions.
722. Common Article 3 prescribes: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum … [certain] provisions…” . Therefore, Common Article 3 is applicable to any non-international armed conflict within the territory of a state party. In general, non-international armed conflicts referred to in Common Article 3 are conflicts with armed forces on either side engaged in hostilities that are in many respects similar to an international war, but take place within the confines of a single country.”
723. Additional Protocol II develops and supplements Common Article 3. Specifically, Additional Protocol II applies to conflicts taking place “in the territory of a High contracting party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”.
724. Expanding on Common Article 3, Article 1 of Additional Protocol II sets out the material requirements for applicability:
(i) the occurrence of an armed conflict in the territory of a High Contracting party, namely, Rwanda, between its armed forces and dissident armed forces or other armed groups;
(ii) the responsible command of the dissident armed forces or other organized armed groups;
(iii) the exercise of control by dissident armed forces or other organized armed groups, enabling them to carry out sustained and concerted military operations;
(iv) the implementation of Additional Protocol II by the dissident armed forces or other organized armed groups.”
o Rationae Personae: Perpetrators
725. Pursuant to Article 4 of the ICTR Statute, the Tribunal “shall have the power to prosecute persons committing or ordering to be committed serious violations of [Common Article 3 and Additional Protocol II]”. The category of persons who are accountable under this article for war crimes on civilians is not limited. As noted by the Appeals Chamber of this Tribunal, “Article 4 makes no mention of a possible delimitation of classes of persons likely to be prosecuted under this provision.”
726. Similarly, Common Article 3 and Additional Protocol II do not specify classes of potential perpetrators but rather indicate who are bound by the obligations imposed by their provisions to protect victims and potential victims of armed conflicts. Under Common Article 3, “each Party to the conflict” is so bound. The ICRC Commentary on Additional Protocol II simply indicates that criminal responsibility extends to “those who must, within the meaning of the Protocol, conform to certain rules of conduct with respect to the adversary and the civilian population.”
727. However, further clarification of the class of potential perpetrators is unnecessary in view of the principal purpose of these instruments, which is to protect victims of armed conflicts. Indeed it is well established from the jurisprudence of the International Tribunals that the protections of Common Article 3, as incorporated in Article 4 of the Statute, imply effective punishment of perpetrators, whoever they may be. In this regard, the Appeals Chamber in its judgment in the Akayesu case held that:
The minimum protection provided for victims under common Article 3 implies necessarily effective punishment on persons who violate it. Now, such punishment must be applicable to everyone without discrimination, as required by the principles governing individual criminal responsibility as laid down by the Nuremberg Tribunal in particular. The Appeals Chamber is therefore of the opinion that international humanitarian law would be lessened and called into question if it were to be admitted that certain persons be exonerated from individual criminal responsibility for a violation of common Article 3 under the pretext that they did not belong to a specific category.
728. The Akayesu Appeals Chamber also held that there need be no requisite link between the perpetrator and one of the parties to the conflict. Specifically, the Appeals Chamber stated that “such a special relationship is not a condition precedent to the application of Common Article 3 and, hence, of Article 4 of the Statute.”
729. Accordingly, criminal responsibility for the commission of any act covered by Article 4 of the Statute is not conditional on any defined classification of the alleged perpetrator.
o Rationae Personae: Victims
730. The protections of both Common Article 3 and Additional Protocol II, as incorporated in Article 4 of the Statute, extend to persons taking no active part in the hostilities. In view of the jurisprudence of the International Tribunals, an alleged victim, under Article 4 of the Statute, is “any individual not taking part in the hostilities.”
731. The criterion applied in the Tadić Judgment to determine the applicability of Article 4 to alleged victims of armed conflicts is: “whether, at the time of the alleged offence, the alleged victim of the proscribed acts was directly taking part in hostilities”. If the answer to this question is the negative, then the alleged victim was a person protected under Common Article 3 and Additional Protocol II.
o Rationae Loci
732. The protection afforded to victims of armed conflicts under Common Article 3 and Additional Protocol II, as incorporated by Article 4 of the Statute, extends throughout the territory of the state where the hostilities are occurring, without limitation to the “war front” or to the “narrow geographical context of the actual theatre of combat operations,” once the objective, material conditions for applicability of these provisions have been satisfied.
o Nexus Between the Alleged Violation and the Armed Conflict
733. For a criminal offence to fall within the ambit of Article 4 of the Statute, the Chamber must be satisfied that a nexus existed between the alleged breach of Common Article 3 or of Additional Protocol II and the underlying armed conflict.
734. The objective of this requirement of a nexus between the crimes committed and the armed conflict can best be appreciated in light of the underlying humanitarian purpose of these instruments to protect victims of internal conflicts, not victims of offences unrelated to the hostilities, however reprehensible such offences may be.
735. The existence of the requisite nexus at the time of the alleged crime is an issue for determination on the evidence presented. It is the view of both the ICTR and the ICTY Appeals Chambers that the nexus requirement is met if the alleged offence is “closely related to the armed conflict”. Indeed the Appeals Chambers have stated:
The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, 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. Hence, if it can be established that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict.
736. The determination of whether or not there existed a close relationship between a particular offence and an armed conflict will usually require consideration of several factors, including: whether the perpetrator is a commander or combatant; whether the victim is a non-combatant; whether the victim is a member of the opposing party; whether the crime is part of a military campaign; and whether the crime was committed within the context of the perpetrator’s official duties. These criteria are not exhaustive of the factors indicating the existence of a close relationship between a particular offence and an armed conflict.
o Serious Violations
Pursuant to Article 4 of the Statute, the Tribunal has been granted jurisdiction to prosecute serious violations of Common Article 3 and of Additional Protocol. A “serious violation” within the context of Article 4, in the opinion of this Tribunal, constitutes a breach of a rule protecting important humanitarian values with grave consequences for the victim. On this basis, the Tribunal has expressed the view, with which this Chamber concurs, that the acts articulated in Article 4 of the Statute, constituting serious violations of Common Article 3 and Additional Protocol II, entail individual criminal responsibility. 
ICTR, Kamuhanda case, Judgment, 22 January 2004, §§ 721–736.

In its judgment in the Imanishimwe case in 2004, the ICTR Trial Chamber, referring to the Semanza judgment of 15 May 2003, stated the following as general requirements of Article 4 of the 1994 ICTR Statute (relating to “violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II”):
The Chamber explained in the Semanza Judgement that in connection with crimes within the scope of Article 4 of the [1994 ICTR] Statute, the Prosecutor must prove … the following elements: (1) the existence of a non-international armed conflict on the territory of the concerned state; (2) the existence of a nexus between the alleged violation and the armed conflict; and (3) the victims were not directly taking part in the hostilities at the time of the alleged violation. If these elements are proven beyond a reasonable doubt, the Chamber will proceed to assess whether the accused is responsible for a specific violation of Common Article 3 or Additional Protocol II. 
ICTR, Imanishimwe case, Judgment, 25 February 2004, § 766.

International Criminal Tribunal for the former Yugoslavia
In its decision on the Defence Motion for Interlocutory Appeal in the Tadić case in 1995, the ICTY Appeals Chamber, with regard to the expression of the “violations of the laws and customs of war” aimed at in Article 3 of the 1993 ICTY Statute, stated:
A literal interpretation of Article 3 shows that: (i) it refers to a broad category of offences, namely all “violations of the laws or customs of war”; and (ii) the enumeration of some of these violations provided in Article 3 is merely illustrative, not exhaustive.
… Indeed, Article 3, before enumerating the violations, provides that they “shall include but not be limited to” the list of offences. Considering this list in the general context of the Secretary-General’s discussion of the [1907 Hague Regulations] and international humanitarian law, we conclude that this list may be construed to include other infringements of international humanitarian law. The only limitation is that such infringements must not be already covered by Article 2 (lest this latter provision should become superfluous). Article 3 may be taken to cover all violations of international humanitarian law other than the “grave breaches” of the four Geneva Conventions falling under Article 2 (or, for that matter, the violations covered by Articles 4 and 5, to the extent that Articles 3, 4 and 5 overlap). 
ICTY, Tadić case, Interlocutory Appeal, 2 October 1995, § 87.
[emphasis in original]
The ICTY Appeals Chamber further stated:
The Appeals Chamber deems it fitting to specify the conditions to be fulfilled for Article 3 [of the 1993 ICTY Statute relative to “violations of the laws and customs of war”] to become applicable. The following requirements must be met for an offence to be subject to prosecution before the International Tribunal under Article 3:
(i) the violation must constitute an infringement of a rule of international humanitarian law;
(ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met …
(iii) the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. Thus, for instance, the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a “serious violation of international humanitarian law” although it may be regarded as falling foul of the basic principle laid down in Article 46, paragraph 1, of the Hague Regulations (and the corresponding rule of customary international law) whereby “private property must be respected” by any army occupying an enemy territory;
(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.
It follows that it does not matter whether the “serious violation” has occurred within the context of an international or an internal armed conflict, as long as the requirements set out above are met. 
ICTY, Tadić case, Interlocutory Appeal, 2 October 1995, § 94.

In its judgment in the Tadić case in 1997, the ICTY Trial Chamber, with regard to the expression of the “violations of the laws and customs of war” aimed at in Article 3 of the 1993 ICTY Statute, stated:
610. According to the Appeals Chamber [Tadić case (Interlocutory Appeal)], the conditions that must be satisfied to fulfil the requirements of Article 3 of the [1993 ICTY] Statute are:
(i) the violation must constitute an infringement of a rule of international humanitarian law;
(ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met;
(iii) the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim … ; and
(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.
Those requirements apply to any and all laws or customs of war which Article 3 covers.
611. In relation to requirements (i) and (ii), it is sufficient to note that the Appeals Chamber has held, on the basis of the Nicaragua case, that Common Article 3 [of the 1949 Geneva Conventions] satisfies these requirements as part of customary international humanitarian law.
612. While, for some laws or customs of war, requirement (iii) may be of particular relevance, each of the prohibitions in Common Article 3: against murder; the taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment; and the passing of sentences and the carrying-out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilised peoples, constitute, as the Court put it, “elementary considerations of humanity”, the breach of which may be considered to be a “breach of a rule protecting important values” and which “must involve grave consequences for the victim”. Although it may be possible that a violation of some of the prohibitions of Common Article 3 may be so minor as to not involve “grave consequences for the victim”, each of the violations with which the accused has been charged clearly does involve such consequences.
613. Finally, in relation to the fourth requirement, namely that the rule of customary international humanitarian law imposes individual criminal responsibility, the Appeals Chamber held in the Appeals Chamber Decision that customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife.
Consequently, this Trial Chamber has the competence to hear and determine the charges against the accused under Article 3 of the Statute relating to violations of the customary international humanitarian law applicable to armed conflicts, as found in Common Article 3. 
ICTY, Tadić case, Judgment, 7 May 1997, §§ 610–613.

In the judgment on appeal in 1999, the ICTY Appeals Chamber stated with respect to violations committed “against the persons or property protected under the provisions of the relevant Geneva Conventions”:
Article 4(1) of Geneva Convention IV (protection of civilians), applicable to the case at issue, defines “protected persons” – hence possible victims of grave breaches – as those “in the hands of a Party to the conflict or Occupying Power of which they are not nationals”. In other words, subject to the provisions of Article 4(2), the Convention intends to protect civilians (in enemy territory, occupied territory or the combat zone) who do not have the nationality of the belligerent in whose hands they find themselves, or who are stateless persons. In addition, as is apparent from the preparatory work, the Convention also intends to protect those civilians in occupied territory who, while having the nationality of the Party to the conflict in whose hands they find themselves, are refugees and thus no longer owe allegiance to this Party and no longer enjoy its diplomatic protection. 
ICTY, Tadić case, Judgment on Appeal, 15 July 1999, § 164.

In its judgment in the Mucić case in 1998, the ICTY Trial Chamber, as regards Article 3 of the 1993 ICTY Statute, referred to the decision in the Tadić case (Interlocutory Appeal) and stated:
279. The Appeals Chamber, in its discussion of Article 3, proceeded further to enunciate four requirements that must be satisfied in order for an offence to be considered as within the scope of this Article. These requirements are the following:
(i) the violation must constitute an infringement of a rule of international humanitarian law;
(ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met (…);
(iii) the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. (…);
(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.
280. This Trial Chamber finds no reason to depart from the position taken by the Appeals Chamber on this matter. 
ICTY, Mucić case, Judgment, 16 November 1998, §§ 279–280.

In the judgment on appeal in 2001, the ICTY Appeals Chamber, as regards Article 3 of the 1993 ICTY Statute, referred to the decision in the Tadić case (Interlocutory Appeal) and stated:
131. … The Appeals Chamber is of the view that the [UN] Secretary-General’s Report and the statements made by State representatives in the [UN] Security Council at the time of the adoption of the Statute … clearly support a conclusion that the list of offences listed in Article 3 was meant to cover violations of all of the laws or customs of war, understood broadly, in addition to those mentioned in the Article by way of example …

133. … The Appeals Chamber thus confirms the view expressed in the [Tadić case, Judgement on Appeal] that the expression “laws and customs of war” has evolved to encompass violations of Geneva law at the time the alleged offences were committed, and that consequently, Article 3 of the Statute may be interpreted as intending the incorporation of Geneva law rules. 
ICTY, Mucić case, Judgment on Appeal, 2 February 2001, §§ 131 and 133.
[emphasis in original]
In its judgment in the Furundžija case in 1998, the ICTY Trial Chamber, referring to the Tadić case, stated:
As interpreted by the Appeals Chamber in the Tadić Jurisdiction Decision, Article 3 [of the 1993 ICTY Statute] has a very broad scope. It covers any serious violation of a rule of customary international humanitarian law entailing, under international customary or conventional law, the individual criminal responsibility of the person breaching the rule. It is immaterial whether the breach occurs within the context of an international or internal armed conflict. 
ICTY, Furundžija case, Judgment, 10 December 1998, § 132.

In its judgment in the Blaškić case in 2000, the ICTY Trial Chamber, referring to the Tadić case, stated:
175. The Prosecution contended that the provisions of the Regulations annexed to the Hague Convention IV of 1907 constitute international customary rules which were restated in Article 6(b) of the Nuremberg Statute. Violations of these provisions incur the individual criminal responsibility of the person violating the rule. Conversely, the Defence did not acknowledge that violations of the laws or customs of war within the meaning of Common Article 3 of the Geneva Conventions had ever been upheld to impose criminal sanctions upon individuals.
176. The Trial Chamber recalls that violations of Article 3 of the [1993 ICTY] Statute which include violations of the Regulations of The Hague and those of Common Article 3 are by definition serious violations of international humanitarian law within the meaning of the Statute. They are thus likely to incur individual criminal responsibility in accordance with Article 7 of the Statute. The Trial Chamber observes moreover that the provisions of the criminal code of the SFRY [Socialist Federal Republic of Yugoslavia], adopted by Bosnia-Herzegovina in April 1992, provide that war crimes committed during internal or international conflicts incur individual criminal responsibility. The Trial Chamber is of the opinion that, as was concluded in the Tadić Appeal Decision, customary international law imposes criminal responsibility for serious violations of Common Article 3. 
ICTY, Blaškić case, Judgment, 3 March 2000, §§ 175–176.

In the judgment in the Kunarac case in 2001, the ICTY Trial Chamber, as regards Article 3 of the 1993 ICTY Statute, referred to the decision in the Tadić case (Interlocutory Appeal) and stated:
The Appeals Chamber in the Jurisdiction Decision further identified four requirements specific to Article 3:
the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met […]; (iii) the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. […]; (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule. 
ICTY, Kunarac case, Judgment, 22 February 2001, § 403.

The Naletilić and Martinović case before the ICTY in 2001 dealt with crimes surrounding the military offensive launched in May 1993 by the Army of the Republic of Croatia (HV) and the Croatian Defence Council (HVO) against the Bosnian Muslim population of Mostar (south-western Bosnia and Herzegovina) and the Army of Bosnia and Herzegovina (ABiH). In considering whether an alleged crime may be adjudicated under Article 3 of the 1993 ICTY Statute – dealing with violations of the laws or customs of war – the Trial Chamber considered the jurisprudence of the ICTY (and in particular that relating to the Tadić case) and noted:
225. … two preliminary requirements must be satisfied. First, there must have been an armed conflict, whether internal or international in character, at the time the offences were allegedly committed. Secondly, there must be a close nexus between the armed conflict and the alleged offence, meaning that the acts of the accused must be “closely related” to the hostilities. …
226. In view of the jurisprudence of the Tribunal, the Chamber must be satisfied of four additional requirements:
(i) the violation must constitute an infringement of a rule of international humanitarian law;
(ii) the rule must be customary in nature, or, if it belongs to treaty law, the required conditions must be met;
(iii) the violation must be serious, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim;
(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.

228. … It is now undisputed in the jurisprudence of the Tribunal that Article 3 of the [1993 ICTY] Statute covers violations of common Article 3 [of the 1949 Geneva Conventions]. It is also well established that common Article 3 has acquired the status of customary international law, and that it applies regardless of the internal or international character of the conflict. Moreover, it appears from the jurisprudence that common Article 3 of the Statute entails individual criminal responsibility.  
ICTY, Naletilić and Martinović case, Judgment, 31 March 2003, §§ 225–226 and 228.

In its judgment in the Kvočka case in 2001, the ICTY Trial Chamber, as regards Article 3 of the 1993 ICTY Statute, stated:
For a successful prosecution under Article 3 [of the 1993 ICTY Statute]:
(i) the violation must constitute an infringement of a rule of international humanitarian law;
(ii) the rule must be customary in nature, or, if it belongs to treaty law, the required conditions must be met;
(iii) the violation must be serious, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim;
(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule. 
ICTY, Kvočka case, Judgment, 2 November 2001, § 123.

In its judgment in the Krnojelac case in 2002, the ICTY Trial Chamber, with regard to the expression of the “violations of the laws and customs of war” aimed at in Article 3 of the 1993 ICTY Statute, stated:
In addition, four requirements specific to Article 3 must be satisfied, namely,
(i) the violation must constitute an infringement of a Rule of international humanitarian law; (ii) the Rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met […]; (iii) the violation must be “serious”, that is to say, it must constitute a breach of a Rule protecting important values, and the breach must involve grave consequences for the victim. […]; (iv) the violation of the Rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule. 
ICTY, Krnojelac case, Judgment, 15 March 2002, § 52.

In its judgment in the Vasiljević case in 2002, the ICTY Trial Chamber stated:
In addition, there are four conditions which must be fulfilled before an offence may be prosecuted under Article 3 of the [1993 ICTY] Statute:
(i) the violation must constitute an infringement of a rule of international humanitarian law;
(ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met;
(iii) the violation must be serious, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim; and
(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule. 
ICTY, Vasiljević case, Judgment, 29 November 2002, § 26.

In its judgment in the Stakić case in 2003, the ICTY Trial Chamber stated:
As argued by the parties, in addition to the requirements common to Articles 3 and 5 of the [1993 ICTY] Statute, four additional requirements specific to Article 3 must be satisfied in respect of the crime of murder as a violation of the laws or customs of war:
1. The violation must constitute an infringement of a rule of international humanitarian law;
2. The rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met […];
3. The violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim […];
4. The violation of the rule must entail, under customary or conventional law, the individual responsibility of the person breaching the rule. 
ICTY, Stakić case, Judgment, 31 July 2003, § 580.

In its judgment in the Galić case in 2003, the ICTY Trial Chamber, as regards Article 3 of the 1993 ICTY Statute, referred to the decision in the Tadić case (Interlocutory Appeal) and stated:
According to the same Appeals Chamber Decision, for criminal conduct to fall within the scope of Article 3 of the [1993 ICTY] Statute, the following four conditions (“the Tadić conditions”) must be satisfied:
(i) the violation must constitute an infringement of a rule of international humanitarian law;
(ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met;
(iii) the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim; and
(iv) the violation must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.
The Tadić conditions limit the jurisdiction of the Tribunal to violations of the laws or customs of war that are at once recognized as criminally punishable and are “serious” enough to be dealt with by the Tribunal. 
ICTY, Galić case, Judgment, 5 December 2003, § 11.

In its judgment in the Kordić and Čerkez case in 2001, the ICTY Trial Chamber, referring to the Tadić case, stated:
168. As to the argument that Additional Protocol I does not entail individual criminal responsibility, the Trial Chamber recalls a statement in the Tadić Jurisdiction Decision:
Faced with similar claims with respect to the various agreements and conventions that formed the basis of its jurisdiction, the International Military Tribunal at Nuremberg concluded that a finding of individual criminal responsibility is not barred by the absence of treaty provisions on punishment of breaches … because, as the Nuremberg Tribunal concluded “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”
The Appeals Chamber in that case had no difficulty in finding that customary law “imposes criminal liability for serious violations of Common Article 3” of the Geneva Conventions, an article that contains no reference to individual responsibility. This finding was reaffirmed by the Appeals Chamber in [Mucić].
169. By analogy, violations of Additional Protocol I incur individual criminal liability in the same way that violations of Common Article 3 give rise to individual criminal liability. 
ICTY, Kordić and Čerkez case, Judgment, 26 February 2001, §§ 168–169.

In its Rule 98bis Decision in the Slobodan Milošević case in 2004, the ICTY Trial Chamber stated with respect to the existence of armed conflict as a prerequisite for serious violations of international humanitarian law under Article 3 of the 1993 ICTY Statute:
15. It is settled in the International Tribunal’s jurisprudence that Article 3 (violations of the laws or customs of war) and Article 5 (crimes against humanity) of the [1993 ICTY] Statute apply to acts committed in both internal and international armed conflicts. It is also settled that Article 3 is a general, residual clause covering all serious violations of international humanitarian law not falling under Articles 2, 4, or 5 of the Statute, as well as violations of Common Article 3 of the Geneva Conventions, which specifically applies to cases of armed conflict not of an international character. Both the Prosecution and the Amici Curiae agree as to the requirement of an armed conflict for Articles 3 and 5 of the Statute.
16. The test for determining the existence of an armed conflict was set out in the Tadic Jurisdiction Appeals Decision (“Tadic test”) as follows:
[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.
17. For the purposes of this Motion, the relevant portion of the Tadic test, which has been consistently applied within the Tribunal, is “protracted armed violence between governmental authorities and organized armed groups”. This calls for an examination of (1) the organisation of the parties to the conflict and (2) the intensity of the conflict.
18. The Trial Chamber makes the following observations on the Tadic test.
19. First, the Tadic test is not inconsistent with the ICRC’s Official Commentary to Common Article 3 of the Geneva Conventions of 12 August 1949 (“ICRC Commentary”), upon which the Amici Curiae appear to place reliance. In this regard, the Trial Chamber observes that the ICRC Commentary is nothing more than what it purports to be, i.e., a commentary, and only has persuasive value. The ICRC Commentary sets out a more extensive list of criteria than the Tadic test, which may be considered when determining whether an armed conflict exists; but the ICRC itself states that “these different conditions, although in no way obligatory, constitute convenient criteria”; as such, the ICRC criteria are neither definitive nor exhaustive, and Common Article 3 “should be applied as widely as possible”.
20. Second, and of greater significance, the Tadic test is consistent with the ICC’s treatment of war crimes committed during armed conflict not of an international character. Article 8 of the ICC Statute defines “war crimes” committed during armed conflict not of an international character as “violations of article 3 common to the Four Geneva Conventions of 12 August 1949”, but states that this definition “does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature”. “War crimes” under Article 8 also include “[o]ther serious violations of the laws and customs applicable in armed conflicts not of an international character”, but this definition “does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups”. It thus can be seen that Article 8 is not only consistent with the Tadic test, but also incorporates part of the Tadic Jurisdiction Appeals Decision into its own definition of “war crimes”.
21. Third, the Tadic test is consistent with Additional Protocol II to the Four Geneva Conventions. 
ICTY, Slobodan Milošević case, Rule 98bis Decision, 16 June 2004, §§ 15–21.

In its judgment in the Krajišnik case in 2006, the ICTY Trial Chamber held with respect to Article 3 of the 1993 ICTY Statute (violations of the laws or customs of war):
842. Article 3 of the [1993 ICTY] Statute is a “residual clause” which gives the Tribunal jurisdiction over any serious violation of international humanitarian law not covered by Articles 2, 4, or 5 of the Statute. To fall within this residual jurisdiction, the offence charged must meet four conditions: (i) it must constitute an infringement of a rule of international humanitarian law; (ii) the rule infringed upon must be customary in nature or, if it belongs to treaty law, the treaty provisions were unquestionably binding on the parties at the time of the alleged offence and do not derogate from peremptory norms of international law; (iii) the violation must be serious, that is to say, it must involve a breach of a rule protecting important values and the breach must have grave consequences for the victim; and (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.

844. Once jurisdiction is established, there are two general conditions that must be met for the applicability of Article 3 of the Statute: first, there must be an armed conflict; and second, there must be a nexus between the alleged offence and the armed conflict.
845. Armed conflict … As indicated above, the nature of the conflict (internal or international) is immaterial for the purposes of Common Article 3 [of the 1949 Geneva Conventions].
846. Nexus. The alleged crime need not have occurred at a time and place in which there was actual combat, so long as the acts of the perpetrator were “closely related” to hostilities occurring in territories controlled by parties to the conflict. The existence of this close relationship between the crime and the armed conflict will be established where it can be shown that the conflict played a substantial part in the perpetrator’s ability to commit the crime, his or her decision to commit it, the manner in which it was committed, or the purpose for which it was committed. 
ICTY, Krajišnik case, Judgment, 27 September 2006, §§ 842 and 845–846.
[emphasis in original]
With regard to charges under Article 3 of the 1993 ICTY Statute that are based on common Article 3 of the 1949 Geneva Conventions, the Trial Chamber added:
The final requirement for the application of an Article 3 charge based on Common Article 3 is that the victim was taking no active part in the hostilities at the time the offence was committed. This covers, among other persons, members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause. The perpetrator must know or should have known the status of the victims as persons taking no active part in the hostilities. 
ICTY, Krajišnik case, Judgment, 27 September 2006, § 847.

In its judgment in the Blagojević and Jokić case in 2005, the ICTY Trial Chamber considered whether an alleged crime may be adjudicated under Article 3 of the 1993 ICTY Statute dealing with violations of the laws or customs of war in the light of the ICTY jurisprudence:
536. The application of Article 3 of the [1993 ICTY] Statute presupposes the existence of an armed conflict and a nexus between the alleged offence and the armed conflict. An armed conflict is defined to exist “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised groups or between such groups within a State.” It is immaterial whether this conflict is internal or international. As to the precise nature of the nexus, when the crime alleged has not occurred at a time and place in which fighting was actually taking place, the Appeals Chamber has held that “[i]t would be sufficient […] that the alleged crimes were closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict.” Such a relation exists as long as the crime is “shaped by or dependent upon the environment – the armed conflict – in which it is committed.”
537. The jurisprudence of this Tribunal has established four additional conditions must be satisfied for an offence to be charged under Article 3 of the Statute:
(i) the violation must constitute an infringement of a rule of international humanitarian law;
(ii) the rule must be customary in nature, or, if it has conventional basis, certain conditions must be met, namely that the agreements “were unquestionably binding on the parties at the time of the alleged offence” and are “not in conflict with or derogate from peremptory norms of international law”;
(iii) the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim; and
(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.

539. The charge of murder as a violation of the laws or customs of war is based on Article 3 common to the four Geneva Conventions of 1949 (“Common Article 3”). It is settled in the jurisprudence of this Tribunal that violations of Common Article 3 fall within the ambit of Article 3 of the Statute. It is also well established that Common Article 3 is part of customary international law.
540. A last requirement for the application of any Article 3 charge based on Common Article 3 is that the victim must have taken no active part in the hostilities at the time the crime was committed. 
ICTY, Blagojević and Jokić case, Judgment, 17 January 2005, §§ 536–537 and 539–540.

In the Miodrag Jokić case before the ICTY in 2003, the accused, a senior officer in the Yugoslav Navy, was charged with six counts of violations of the laws or customs of war under Article 3 of the 1993 ICTY Statute for his role in the shelling of Dubrovnik on 6 December 1991. 
ICTY, Miodrag Jokić case, Second Amended Indictment, 27 August 2003, §§ 10–23, Counts 1–6.

Following a plea agreement jointly filed by the accused and the Prosecution, the accused pleaded guilty to the charges. 
ICTY, Miodrag Jokić case, Sentencing Judgment, 18 March 2004, §§ 5–14.

The Trial Chamber accepted the plea and entered a corresponding finding of guilt, being satisfied that the preconditions for the crimes charged were fulfilled:
All the counts contained in the Indictment refer to crimes punishable under Article 3 of the [1993 ICTY] Statute. The common elements of Article 3 crimes are that, first, there was an armed conflict, whether international or non-international in character, at the time the offences were committed. Second, there was a close nexus between the armed conflict and the offence, meaning that the acts in question were “closely related” to the hostilities. The Trial Chamber is satisfied, from the material provided to it, that these prerequisites are met in the present case. 
ICTY, Miodrag Jokić case, Sentencing Judgment, 18 March 2004, § 12.

In the Strugar case before the ICTY in 2003, the accused, a Commander in the Yugoslav People’s Army (JNA), was charged with six counts of violations of the laws or customs of war under Article 3 of the 1993 ICTY Statute for his role in a military campaign against the Dubrovnik region of Croatia. 
ICTY, Strugar case, Third Amended Indictment, 10 December 2003, §§ 1–25, Counts 1–6.

In its judgment in 2005, the Trial Chamber stated:
For the applicability of Article 3 of the [1993 ICTY] Statute two preliminary requirements must be satisfied. First, there must have been an armed conflict at the time the offences were allegedly committed. Secondly, there must be a close nexus between the armed conflict and the alleged offence, meaning that the acts of the accused must be “closely related” to the hostilities. The Appeals Chamber [in the Kunarac case] considered that the armed conflict “need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, 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”. 
ICTY, Strugar case, Judgment, 31 January 2005, § 215.

In its judgment in the Brđanin case in 2004, the ICTY Trial Chamber considered whether an alleged crime may be adjudicated under Article 2 of the 1993 ICTY Statute dealing with grave breaches of the 1949 Geneva Conventions in the light of ICTY jurisprudence:
121. There are four preconditions to the applicability of Article 2 of the [1993 ICTY] Statute: (i) the existence of an armed conflict; (ii) the establishment of a nexus between the alleged crimes and the armed conflict; (iii) the armed conflict must be international in nature; and (iv) the victims of the alleged crimes must qualify as protected persons pursuant to the provisions of the 1949 Geneva Conventions.
122. It is settled in the jurisprudence of this Tribunal that an armed conflict exists “whenever there is resort to armed forces between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State”.
123. In linking the offences to the armed conflict, it is not necessary to establish that actual combat activities occurred in the area where the crimes are alleged to have occurred. Rather, “[i]t is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict.”
124. Clearly, an armed conflict is international in nature if it takes place between two or more States. In addition, an internal armed conflict may become international if (i) another State intervenes in that conflict through its troops, or, alternatively, (ii) some of the participants in the internal armed conflict act on behalf of that other State. There are three different tests, specific to the circumstances, to determine the degree of control that a foreign State has over armed forces fighting on its behalf. For armed forces, militias or paramilitary units acting as de facto organs of the State, the establishment of the overall character of the control suffices. The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in (i) organising, coordinating or planning the military actions of the military group, in addition to (ii) financing, training and equipping or providing operational support to that group. These two elements must both be satisfied.
125. Each of the four 1949 Geneva Conventions respectively sets out the conditions under which a person or property is protected by its provisions. Persons not entitled to protection under the first three Geneva Conventions, necessarily fall within the ambit of Geneva Convention IV, which applies to civilians, provided that the requirements of Article 4 of Geneva Convention IV are satisfied. Geneva Convention IV defines “protected persons” as those “in the hands of a party to the conflict or Occupying Power of which they are not nationals”. The criterion of nationality might exclude certain victims of crimes from the category of protected persons. However, it is settled jurisprudence of this Tribunal that protected persons should not be defined by the strict requirement of nationality, as opposed to more realistic bonds demonstrating effective allegiance to a party to a conflict, such as ethnicity. This Trial Chamber agrees with and will follow this approach. 
ICTY, Brđanin case, Judgment, 1 September 2004, §§ 121–125.
[emphasis in original]
In considering whether an alleged crime may be adjudicated under Article 3 of the 1993 ICTY Statute – dealing with violations of the laws or customs of war – the Trial Chamber further considered the jurisprudence of the ICTY (and, in particular, that relating to the Tadić case) and noted:
126. Article 3 of the [1993 ICTY] Statute refers to a broad category of offences, namely all “violations of the laws or customs of war”. It has thus been interpreted as a residual clause covering all violations of humanitarian law not falling under Articles 2, 4 or 5 of the Statute, more specifically: (i) violations of the Hague law on international conflicts; (ii) infringements of provisions of the Geneva Conventions other than those classified as “grave breaches “ by those Conventions; (iii) violations of common Article 3 of the Geneva Conventions (“common Article 3”) and other customary rules on internal armed conflicts, and (iv) violations of agreements binding upon the parties to the conflict, considered qua treaty law, i.e., agreements which have not turned into customary international law.
127. The application of Article 3 of the Statute presupposes that the alleged acts of the accused have been committed in an armed conflict. It is immaterial whether this conflict was internal or international in nature.
128. A close nexus must exist between the alleged offence and the armed conflict. This is satisfied when the alleged crimes are “closely related to the hostilities”.
129. The jurisprudence of this Tribunal has established four additional conditions which must be fulfilled for an offence to be prosecuted under Article 3 of the Statute: (i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met; (iii) the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim; and (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule. Some of the prerequisites for the application of Article 3 of the Statute may differ depending on the specific basis of the relevant charges brought under this Article. 
ICTY, Brđanin case, Judgment, 1 September 2004, §§ 126–129.

In its judgment in the Mrkšić case in 2007, the ICTY Trial Chamber considered whether an alleged crime may be adjudicated under Article 3 of the 1993 ICTY Statute – dealing with violations of the laws or customs of war – in the light of the ICTY jurisprudence:
405. … In order for the Tribunal to have jurisdiction over crimes punishable under Article 3 of the [1993 ICTY] Statute, several preliminary requirements must be satisfied: there must be an armed conflict and the crimes charged must be linked therewith (the so-called nexus requirement). Further, four jurisdictional requirements (known as the four Tadić conditions) must be fulfilled for the offence charged to fall within the scope of Article 3 of the Statute.
(a) Existence of an armed conflict
406. First, there must be an armed conflict, whether international or internal, at the time material to the Indictment. Crimes committed anywhere in the territory under the control of a party to the conflict, until a peaceful settlement of the conflict is achieved, fall within the jurisdiction of the Tribunal.
407. The test for determining the existence of an armed conflict was set out in the Tadić Jurisdiction Decision and has been applied consistently by the Tribunal since:
an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State [Tadić Jurisdiction Decision, § 70].
Two criteria are to be assessed under this test: (i) the intensity of the conflict and (ii) the organisation of the parties. Both are factual matters which ought to be determined in light of the particular evidence available and on a case-by-case basis. Relevant for establishing the intensity of a conflict are, inter alia, the seriousness of attacks and potential increase in armed clashes, their spread over territory and over a period of time, the increase in the number of government forces, the mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and if so whether any resolutions on the matter have been passed. While some degree of organisation by the parties will suffice to establish the existence of an armed conflict, this degree need not be the same as that required for establishing the responsibility of superiors for the acts of their subordinates within the organisation, as no determination of individual criminal responsibility is intended under this provision of the Statute.

(b) Nexus between the acts of the accused and the armed conflict
423. Further, to meet the jurisdictional preconditions of Article 3 of the Statute, the Prosecution must establish a sufficient link between the alleged acts of the accused and the armed conflict. The nexus requirement serves to distinguish war crimes from purely domestic crimes and also prevents purely random or isolated criminal occurrences from being characterized as war crimes. The armed conflict need not have been causal to the commission of the crime charged, but it must have played a substantial part in the perpetrator’s ability to commit that crime. In determining whether such a nexus exists, reliance may be placed upon, inter alia, whether the perpetrator was a combatant, whether the victim was a non-combatant, whether the victim was a member of the opposing party, whether the act may be said to have served the ultimate goal of a military campaign, and whether the crime is committed as part of or in the context of the perpetrator’s official duties.

(c) The four Tadić conditions
425. It is established in the jurisprudence of the Tribunal that for an offence to fall under the scope of Article 3 of the Statute, four conditions must be met:
(i) the violation must constitute an infringement of a rule of international humanitarian law;
(ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met;
(iii) the violation must be serious, that is to say that it must constitute a breach of a rule protecting important values and the breach must involve grave consequences for the victim;
(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule. [Tadić Jurisdiction Decision, § 94]
426. In the present case, the three Accused are charged with three counts of violations of the laws and customs of war pursuant to Article 3 of the Statute, for cruel treatment, torture and murder. All three counts are based on Common Article 3 of the 1949 Geneva Conventions. It is settled jurisprudence that violations of Common Article 3 fall within the scope of Article 3 of the Statute. In particular, it is now established that Common Article 3 forms part of customary international law and that violation of this provision entails criminal liability. Accordingly, the Appeals Chamber has accepted that serious violations of Common Article 3 would at once satisfy the four Tadić conditions.
427. Further, as Common Article 3 protects persons taking no active part in the hostilities, it must be established that the victims of the alleged violation were not taking active part in the hostilities at the time the crime was committed. 
ICTY, Mrkšić case, Judgment, 27 September 2007, §§ 405–407, 423 and 425–427.

In its judgment in the Orić case in 2005, the ICTY Trial Chamber considered whether an alleged crime may be adjudicated under Article 3 of the 1993 ICTY Statute – dealing with violations of the laws or customs of war – in the light of the ICTY jurisprudence:
252. Article 3 of the [1993 ICTY] Statute is entitled “Violations of the Laws or Customs of War”. This expression is a traditional term of art, which has now largely been replaced by the more recent and comprehensive notion of “international humanitarian law”. Article 3 of the Statute constitutes a residual clause covering all serious violations of humanitarian law not falling under Articles 2, 4 or 5 of the Statute, including, but not limited to, the violations of the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, and Regulations annexed there to (“1907 Hague Regulations”), as well as violations of Article 3 common to the four 1949 Geneva Conventions (“Common Article 3”). Under Article 3 of the Statute, it is immaterial whether the crimes alleged in the Indictment occurred within an internal or international armed conflict.
1. Preliminary Requirements
253. In order for the Tribunal to have jurisdiction over crimes punishable under Article 3 of the Statute, two preliminary requirements must be satisfied: (i) a state of armed conflict must have existed at the time the offence was committed and (ii) the offence must be closely related to the armed conflict.
254. As to the first requirement, it is well-settled in the jurisprudence of the Tribunal that an armed conflict exists whenever there is resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State. This is distinct from “banditry, unorganised and short-lived insurrections, terrorist activities or civil unrest, which are not subject to international humanitarian law”. Although the warring parties do not necessarily need to be as organised as the armed forces of a State, some degree of organisation is necessary to establish the existence of an armed conflict. However, this determination depends upon an examination of the specific circumstances of each case.
255. The temporal and geographical scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached or, in the case of internal conflicts, a peaceful settlement is achieved. Thus, the norms of international humanitarian law apply regardless of whether actual combat activities are taking place in a particular location.
256. The second requirement, namely that the alleged offences be closely related to the armed conflict, does not necessitate that the said offences be committed whilst fighting is actually taking place or at the scene of combat. As the Appeals Chamber has affirmed, the armed conflict need not have been causal to the commission of the crime. Yet, the existence of an armed conflict must at minimum have played a substantial part in the perpetrators’ ability to commit it, their decision to commit it, the manner in which it was committed or the purpose for which it was committed. Therefore, this requirement would be fulfilled if the alleged offence was committed either during or in the aftermath of the hostilities, provided that it was committed in furtherance of, or at least under the guise of, the situation created by the armed conflict.
2. The Four Tadić Conditions
257. In addition to the two requirements above, the jurisprudence of the Tribunal has established that the following four conditions (“four Tadić conditions”) must be met for an offence to fall within the scope of Article 3 of the Statute:
(i) the violation must constitute an infringement of a rule of international humanitarian law;
(ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met;
(iii) the violation must be serious, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim; and
(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.
3. Additional Requirement Under Common Article 3
258. Some requirements for Article 3 of the Statute to apply may differ depending on the specific legal basis of the charges brought under this Article. For instance, a violation of Common Article 3, such as murder and cruel treatment, must have been committed against “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”. To fulfil this requirement, it is sufficient to examine the relevant facts of each victim and to ascertain whether that person was actively involved in the hostilities at the relevant time. 
ICTY, Orić case, Judgment, 30 June 2006, §§ 252–258.

The Trial Chamber found the accused guilty of the failure to discharge his duty as a superior to take necessary and reasonable measures to prevent the occurrence of murder and cruel treatment from 27 December 1992 to 20 March 1993. He was sentenced to two years’ imprisonment. 
ICTY, Orić case, Judgment, 30 June 2006, §§ 578 and 782 and X. Disposition.

In its judgment in the Sefer Halilović case in 2005, the ICTY Trial Chamber stated with respect to Article 3 of the 1993 ICTY Statute:
1. General Requirements of Article 3 of the Statute
23. Article 3 of the [1993 ICTY] Statute has been defined in the jurisprudence of the Tribunal as a general clause covering all violations of humanitarian law not covered by Articles 2, 4 or 5, including violations of Article 3 common to the four Geneva Conventions of 12 August 1949 (“Common Article 3”) and other customary rules on non-international conflict. The application of Article 3 of the Statute presupposes the existence of an armed conflict and a nexus between the alleged crime and the armed conflict. Moreover, four additional [conditions] must be fulfilled for a crime to be [prosecuted] under Article 3 of the Statute. These conditions are generally known as the Tadić conditions.
(a) The Existence of an Armed Conflict and Nexus of the Alleged Crimes with the Armed Conflict
24. It is settled in the jurisprudence of the Tribunal that an armed conflict exists “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised groups or between such groups within a State.”
25. When an accused is charged with violation of Article 3 of the Statute, based on a violation of Common Article 3, it is immaterial whether the armed conflict was international or non-international in nature. Common Article 3 requires the warring parties to abide by certain fundamental humanitarian standards by ensuring “the application of the rules of humanity which are recognized as essential by civilized nations.” This was confirmed by the International Court of Justice in the Nicaragua case, where it held that:
Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a non-international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court’s opinion, reflect what the Court in 1949 called “elementary considerations of humanity” (Corfu Channel, Merits, I.C.J. Reports 1949, p. 22).
The provisions of Common Article 3 and the universal and regional human rights instruments share a common “core” of fundamental standards which are applicable at all times, in all circumstances and to all parties, and from which no derogation is permitted. In light of this general applicability of the provisions of Common Article 3, there is no need for the Trial Chamber to define the nature of the conflict in the present case.
26. The Appeals Chamber in the Tadić case held that until a general conclusion of peace or a peaceful settlement is reached, international humanitarian law continues to apply “in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.”
27. The Defence argued that for the alleged crimes it was not proven that the crimes were not isolated or random acts. The Defence submitted that a crime would be “isolated” or “random” when its occurrence “albeit possibly related to the armed conflict in some respect does not reveal a pattern of criminal conduct on the part of the party to the conflict or where the only relationship between the crime and the armed conflict appears to be a coincidence of time and location.”
28. … The Trial Chamber notes that the Appeals Chamber considered this matter in Tadić and held that the required nexus should be established between the alleged crime and the armed conflict.
29. As to the precise nature of the nexus, when the crime alleged has not occurred at a time and place in which fighting was actually taking place, the Appeals Chamber has held that “it would be sufficient […] that the alleged crimes were closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict.” The crime “need not have been planned or supported by some form of policy” and the armed conflict “need not hav e been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, 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.”
(b) The Tadić Conditions
30. Article 3 of the Statute confers on the Tribunal jurisdiction over any serious offences against international humanitarian law not covered by Article 2, 4 and 5, provided that four conditions be fulfilled: (i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature, or, if it belongs to treaty law, the required conditions must be met; (iii) the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim; and (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.
31. The charge of murder as a violation of the laws and customs of war in the present case is based on Common Article 3. It is well established that Article 3 of the Statute encompasses violations of Common Article 3. It is also well established that Common Article 3 is part of international customary law, that murder is a serious violation of international humanitarian law, which has grave consequences for the victim and it also entails individual criminal responsibility.
2. “Persons Taking no Active Part in the Hostilities” under Common Article 3
32. For the application of any Article 3 charge based on Common Article 3, the Prosecution must also prove that the victim was a person taking no active part in the hostilities at the time the crime was committed.
33. In the Tadić case, the test applied by the Trial Chamber was to ask whether, at the time of the alleged offence, the alleged victim of the proscribed acts was directly taking part in hostilities, “being those hostilities in the context of which the alleged offences are said to have been committed.” The Trial Chamber in Tadić held that “it is unnecessary to define exactly the line dividing those taking an active part in hostilities and those who are not so involved. It is sufficient to examine the relevant facts of each victim and to ascertain whether, in each individual’s circumstances, that person was actively involved in the hostilities at the relevant time.”
34. The Trial Chamber finds that it is the specific situation of the victim at the moment the crime was committed that must be taken into account in determining his or her protection under Common Article 3. The Trial Chamber considers that relevant factors in this respect include the activity, whether or not the victim was carrying weapons, clothing, age and gender of the victims at the time of the crime. While membership of the armed forces can be a strong indication that the [victim] is directly participating in the hostilities, it is not an indicator which in and of itself is sufficient to establish this. Whether a person did or did not enjoy protection of Common Article 3 has to be determined on a case-by-case basis. 
ICTY, Sefer Halilović case, Judgment, 16 November 2005, §§ 23–34.
[emphasis in original]
On the nexus requirement, the Trial Chamber further affirmed:
724. The Trial Chamber recalls that for the existence of the required nexus, the crimes need not have been planned or supported by some form of policy. The Trial Chamber further notes that there is no reason why a single, isolated act, could not constitute a violation of the law and customs of war, when the required nexus has been established.

726. The Trial Chamber has already defined the relevant criteria to verify the existence of the nexus between the armed conflict and the offences. It recalls in particular that the existence of an armed conflict must, at a minimum, 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. The Defence contention that the Prosecution must establish a “direct conjunction” between the acts of the Accused and the armed conflict cannot hold. 
ICTY, Sefer Halilović case, Judgment, 16 November 2005, §§ 724 and 726.

In its judgment in the Dragomir Milošević case in 2007, the ICTY Trial Chamber stated two jurisdictional requirements for the application of Article 3 of the 1993 ICTY Statute:
870. Article 3 of the [1993 ICTY] Statute is a residual clause which covers all serious violations of humanitarian law not covered by Articles 2, 4 or 5 of the Statute. There are two preliminary jurisdictional requirements for the application of Article 3 of the Statute: there must be an armed conflict, whether international or internal, at the time material to the Indictment, and the alleged crime must be closely related to this armed conflict (“nexus requirement”)…
871. The test to determine the existence of an armed conflict was set out in the Tadić Jurisdiction Decision and has been applied consistently by the Tribunal thereafter:
“An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.”
Crimes committed anywhere in the territory under the control of a party to the conflict, until a peaceful settlement of the conflict is achieved, fall within the jurisdiction of the Tribunal. A sufficient link between the alleged acts of the accused and the armed conflict as a whole must be established in order to meet the jurisdictional requirements of Article 3 of the Statute. 
ICTY, Dragomir Milošević case, Judgment, 12 December 2007, §§ 870–871.

Special Court for Sierra Leone
In the Fofana and Kondewa case before the SCSL in 2004, the accused, senior members of the Civil Defence Forces (CDF), were charged with violations of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II, punishable under Article 3 of the 2002 Statute of the Special Court for Sierra Leone, and with the use of child soldiers as an other serious violation of international humanitarian law, punishable under Article 4(c) of the 2002 Statute of the Special Court for Sierra Leone. 
SCSL, Fofana and Kondewa case, Indictment, 4 February 2004, §§ 25–29, Counts 2 and 4–8.

In its judgment in 2007, the Trial Chamber stated with respect to the general requirements of war crimes:
122. The general requirements which must be proved to show the commission of War Crimes pursuant to Article 3 of the [2002 Statute of the Special Court for Sierra Leone] are as follows:
(i) An armed conflict existed at the time of the alleged violation of Common Article 3 or Additional Protocol II;
(ii) There existed a nexus between the alleged violation and the armed conflict;
(iii) The victim was a person not taking direct part in the hostilities at the time of the alleged violation; and
(iv) The Accused knew or had reason to know that the person was not taking a direct part in the hostilities at the time of the act or omission.
3.2.2.1 The Existence of an Armed Conflict
123. The Chamber concludes that the application of Article 3 of the Statute requires that the alleged acts of the Accused be committed in the course of an armed conflict, and “it is immaterial whether the conflict is internal or international in nature.”
124. Relying on the ICTY Appeals Chamber in the Tadic case, and as it held in the CDF Rule 98 Decision, the Chamber rules that under Common Article 3, “an armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”. Therefore, the criteria for establishing the existence of an armed conflict are the intensity of the conflict and the organisation of the parties. These criteria are used “solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganised and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law”. [emphasis added by the Trial Chamber]
125. The Chamber notes that Additional Protocol II contains a stricter threshold for the establishment of an armed conflict than Common Article 3. Article 1 of the Protocol provides in relevant parts:
1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions or application, shall apply to all armed conflicts… which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.
2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.
126. This Chamber is therefore satisfied that where the Prosecution has alleged an offence under Additional Protocol II, then the following conditions must be met in order to establish the element of armed conflict:
(i) An armed conflict took place in the territory of Sierra Leone between its armed forces and dissident armed forces or other organized armed groups; and
The dissent armed forces or other organized groups:
(ii) Were under responsible command;
(iii) Were able to exercise such control over a part of their territory as to enable them to carry out sustained and concerted military operations; and
(iv) Were able to implement Additional Protocol II.
127. The first requirement, that there be an armed conflict, has already been discussed in the context of the Common Article 3 test of armed conflict. The Chamber notes, therefore, that any armed conflict satisfying the higher threshold of the Additional Protocol II test would automatically constitute an armed conflict under Common Article 3. The term “armed forces” is to be defined broadly. The armed forces or groups must be under responsible command which implies a degree of organisation to enable them “to plan and carry out concerted military operations, and to impose discipline in the name of a de facto authority.” They must also be able to control a part of the territory of the country enabling them “to carry out sustained and concerted military operations” and to implement Additional Protocol II.
128. The Chamber also finds that international humanitarian law applies from the beginning of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached, or, in the case internal conflict, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.
3.2.2.2. Nexus
129. What distinguishes a war crime from a purely domestic crime “is that a war crime is shaped by or dependant upon the environment – the armed conflict – in which it is committed”. As to the precise nature of the nexus between the alleged violation and the armed conflict, the Chamber, consistent with the decisions of the Appeals Chambers of the ICTY and of the ICTR on this issue, rules that the nexus requirement is fulfilled if the alleged violation was closely related to the armed conflict. When the violation alleged has not occurred at a time and place in which fighting was actually taking place, the ICTY Appeals Chamber has held that “it would be sufficient […] that the alleged crimes were closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict”. The crime “need not have been planned or supported by some form of policy” and the armed conflict “need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, 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”. The nexus requirement is satisfied where the Accused acted in furtherance of or under the guise of the armed conflict. The expression “under the guise of the armed conflict” does not mean simply “at the same time as an armed conflict” and/or “in any circumstances created in part by the armed conflict”.
130. The Chamber subscribes to the jurisprudence of the Ad Hoc Tribunals which outlined the following factors in determining whether or not the act in question was sufficiently related to the armed conflict, inter alia: “the fact that the [Accused] is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the [Accused’s] official duties”. It has also been stated that the determination of a close relationship between particular offences and an armed conflict will usually require consideration of several factors, not just one.
3.2.2.3 Protected Persons
131. Finally, Common Article 3 applies to “[p]ersons 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” and Additional Protocol II applies to “all persons who do not take a direct part or who have ceased to take part in hostilities”. The Chamber holds that these phrases are so similar that, therefore, they may be treated as synonymous and be categorised as “all persons not taking direct part in the hostilities at the time of the alleged violation”.
132. The Chamber notes that the test applied by the ICTY Trial Chamber in the Tadic case was whether, at the time of the alleged offence, the alleged victim of the said offence was directly taking part in the hostilities, “being those hostilities in the context of which the alleged offences are said to have been committed”. If the answer to that question is negative, the victim will be a person protected by Common Article 3 and Additional Protocol II. Thus, for the purpose of establishing the commission of an offence under Article 3, the Prosecution must also prove that the victim was a person not taking a direct part in the hostilities at the time the offence was committed.

3.2.3 Article 4: Other Serious Violations of International Humanitarian Law
138. The general requirements which must be proved to establish the commission of an Other Serious Violation of International Humanitarian Law are as follows:
(i) An armed conflict existed at the time of the alleged offence; and
(ii) There existed a nexus between the alleged offence and the armed conflict.
139. These two elements have already been discussed in detail above in relation to the general requirements under Article 3 of the [2002 Statute of the Special Court for Sierra Leone]. 
SCSL, Fofana and Kondewa case, Judgment, 2 August 2007, §§ 122–132 and 138–139.

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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “Grave breaches of the law of war are regarded as war crimes. They shall be repressed by penal sanctions.” Delegates also teach that: “Other breaches of the law of war shall be repressed by disciplinary or penal sanctions.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, §§ 775 and 780.

The ICRC Commentary on the Fourth Geneva Convention states: “The Geneva Conventions form part of what are generally called the laws and customs of war, violations of which are commonly called ‘war crimes’.” 
Jean S. Pictet (ed.), Commentary on the Fourth Geneva Convention, ICRC, Geneva, 1958, p. 583.

ICRC
The working paper on war crimes submitted by the ICRC in 1997 to the Preparatory Committee for the Establishment of an International Criminal Court contains lists of “Grave breaches of international humanitarian law applicable in international armed conflicts”, “Other serious violations of international law applicable in international armed conflicts” and “Serious violations of international humanitarian law applicable in non-international armed conflicts”. 
ICRC, Working paper on war crimes submitted to the Preparatory Committee for the Establishment of an International Criminal Court, New York, 14 February 1997, §§ 1–3.

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