How are war criminals prosecuted under humanitarian law?
Extract from ICRC publication "International humanitarian law: answers to your questions"
On becoming party to the Geneva Conventions, States undertake to enact any legislation necessary to punish persons guilty of grave breaches of the Conventions. States are also bound to prosecute in their own courts any person suspected of having committed a grave breach of the Conventions, or to hand that person over for judgment to another State. In other words, perpetrators of grave breaches, i.e. war criminals, must be prosecuted at all times and in all places, and States are responsible for ensuring that this is done.
Generally speaking, a States criminal laws apply only to crimes committed on its territory or by its own nationals. International humanitarian law goes further in that it requires States to seek out and punish any person who has committed a grave breach, irrespective of his nationality or the place where the offence was committed. This principle of universal jurisdiction is essential to guarantee that grave breaches are effectively repressed.
Such prosecutions may be brought either by the national courts of the different States or by an international authority. In this connection, the International Criminal Tribunals for the former Yugoslavia and Rwanda were set up by the UN Security Council in 1993 and 1994, respectively, to try those accused of war crimes committed during the conflicts in those countries.
Why are the humanitarian rules not always respected and violations not always repressed?
This question can be answered in various ways. Some claim that ignorance of the law is largely to blame, others that the very nature of war so wills it, or that it is because international law and therefore humanitarian law as well is not matched by an effective centralized system for implementing sanctions, among other things, because of the present structure of the international community. Be that as it may, whether in conflict situations or in peacetime and whether it is national or international jurisdiction that is in force, laws are violated and crimes committed. Yet simply giving up in the face of such breaches and halting all action that seeks to gain greater respect for humanitarian law would be far more discreditable. This is why, pending a more effective system of sanctions, such acts should be relentlessly condemned and steps taken to prevent and punish them. The penal repression of war crimes must therefore be seen as one means of implementing humanitarian law, whether at national or international level. Lastly, the international community has created a permanent International Criminal Court, which will be competent to try war crimes, crimes against humanity, and genocide.
What is a war crime?
War crimes are understood to mean serious violations of international humanitarian law committed during international or non-international armed conflicts. Several legal texts contain definitions of war crimes, namely the Statute of the International Military Tribunal established after the Second World War in Nuremberg, the Geneva Conventions and their Additional Protocols, the Statutes and case law of the International Criminal Tribunals for the former Yugoslavia and Rwa nda, and the Statute of the International Criminal Court. Definitions of the notion of war crime are also given in the legislation and case law of various countries. It is important to note that one single act may constitute a war crime. The following acts are, among others, included in the definition of war crimes:
- wilful killing of a protected person (e.g. wounded or sick combatant, prisoner of war, civilian);
- torture or inhuman treatment of a protected person;
- wilfully causing great suffering to, or serious injury to the body or health of, a protected person;
- attacking the civilian population;
- unlawful deportation or transfer;
- using prohibited weapons or methods of warfare;
- making improper use of the distinctive red cross or red crescent emblem or other protective signs;
- killing or wounding perfidiously individuals belonging to a hostile nation or army;
- pillage of public or private property.
It should be noted that the International Criminal Tribunal for the former Yugoslavia has recognized that the notion of war crime under customary international law also covers serious violations committed during non-international armed conflicts. The Statute of the International Criminal Court and the Statute of the International Criminal Tribunal for Rwanda also include in their respective lists of war crimes those committed during internal armed conflicts.