International Law Unit 10:
War Crimes
Prof. Fred Morrison
Fall 2005
Outline of the Presentation
(Morning Presentation)
War Crimes
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Historical development
Treaty law and customary law
Relevant treaties
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Fall 2005
Hague and Geneva Conventions and Protocols
Arms limitation treaties
Anti-aggression rules
Customary law
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Outline of the Presentation
(Afternoon presentation)
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War crimes procedures
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International proceedings
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Prosecutions within own forces
Military commissions
Civilians and civilian proceedings
Nuremberg
Yugoslavia, Rwanda
Sierra Leone, Cambodia
The International Criminal Court
Fall 2005
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War Crimes:
I. History and Introduction
War crimes: the Origins
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Middle Ages: the concept of chivalry
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War as an art form
The decline of chivalry
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Fall 2005
Crusades: War with the Infidel
Reformation: Loss of common bond
Rise of nationalism: State as ultimate
Changes in weaponry
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War crimes: Emergence of
the modern concept in Europe
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Europe, 1859 (Battle of Solferino)
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Fall 2005
The role of Henri Dunant
Formation of a private Swiss organization,
which later (1876) became the
International Committee of the Red Cross
Original Geneva Convention (1864)
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War crimes: Emergence of the
modern concept in the U.S.
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The American Civil War (1861-1865)
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The role of Francis Lieber
Lincoln’s General Order No. 100:
“Instruction for the Government of the
Armies of the United States in the Field”
Fall 2005
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War crimes: Development of
the modern concept
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Hague Conferences, 1899 and 1907
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Fyodor Fyodorovich Martens, Russian
diplomat
Hague Conventions
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Convention IV on the Laws and Customs of
War, and accompanying Regulations
Regulations, Art. 22: “The right of belligerents
to adopt means of inuring the enemy is not
unlimited.”
Fall 2005
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War crimes: Making
aggressive war illegal
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Limits on the use of force
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Fall 2005
League of Nations Covenant, 1919
Pact of Paris, 1928
United Nations Charter, 1945
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War crimes: Genocide
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Genocide Convention, 1948
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Fall 2005
Really a human rights convention; applies
also outside of the war context
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War crimes: Codifying what is
allowed and prohibited
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Geneva conventions, 1949
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I. Wounded and Sick
II. Shipwrecked
III. Prisoners of War
IV. Civilians
Geneva protocols, 1977
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Fall 2005
I. Protection of Victimes
II. Non-international Conflicts
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War crimes: Limiting weapons
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Small explosive projectiles
Atomic
Biological
Chemical
Land Mines
Child soldiers
Mercenaries
Fall 2005
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War crimes trials
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Andersonville, 1865
The Treaty of Versailles
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Provisions about the Kaiser
The Leipzig trials
Nuremberg and Tokyo, 1946
Lieut. Calley
Fall 2005
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War crimes trials: recent
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Yugoslav tribunal
Rwandan tribunal
Sierra Leone tribunal
International Criminal Court
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Fall 2005
Referral of charges on Dafur
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War crimes:
Some important influences
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Changes in weaponry
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Changes in civilian involvement
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Greater destructive capability
“Total war”
Changes in communication
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Fall 2005
The “CNN effect”
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Interplay of Humanitarian Law
and Human Rights Law
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Humanitarian law
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Law regulating the conduct of armed
conflict
Human rights law
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Fall 2005
Law regulating the treatment of individuals
by governments
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II. Treaties & Customary Law
Treaties and Customary Law
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Treaties
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Fall 2005
Established by signature and ratification (or
accession or acceptance)
Binding only on parties
Binding only in their own terms
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Bibliographic note
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For easy access to information about
humanitarian law, go to the web site of
the International Committee of the Red
Cross:
www.icrc.org
For texts, etc., of treaties, go to
www.icrc.org/ihl
Fall 2005
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Treaties and Customary Law
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Customary Law
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Fall 2005
Created by long practice accepted as law
Binding on all States
Less precise statement of rules
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Types of treaties
1. Classic war crimes treaties
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Hague Conventions and Regulations
Geneva Conventions
Geneva Protocols
2. Some special treaties
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Fall 2005
Genocide
Torture
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Types of Treaties
3. Armaments/Disarmament treaties
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Fall 2005
Atomic
Biological
Chemical
Land Mines
Child Soldiers
ICBM
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Types of treaties
4. Relationship to general human rights
treaties:
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Fall 2005
Relationship of “human rights law” to
“humanitarian law”
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Questions to ask about
treaties
1. How many parties? Is it broadly
accepted?
2. Are its terms also customary law?
3. What conflicts are in fact covered?
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Fall 2005
Are the participants parties?
Is the conflict “international”?
Conflicts with non-signatory parties?
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Questions to ask about
treaties (cont’d)
4. Who is protected?
5. What are substantive obligations?
6. What are obligations on the parties to
to enforce the provisions?
7. Have the treaty provisions become
customary law
Fall 2005
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Substantive Treaties: Part 1
Classic War Crimes Treaties
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Hague Conventions, 1907
Geneva Conventions, 1949
Geneva Protocols, 1977
Fall 2005
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Hague Convention and
Regulations
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Adopted 1907
Only 35 parties; mostly European and
Latin American
Nevertheless forms the basis of much of
modern humanitarian law
Relatively brief
Fall 2005
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Hague Convention
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It is one of a series of conventions
proposed by the Hague Conferences,
regulating such topics as:
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Fall 2005
The formalities of declaring war
The working of prize courts
Maritime warfare and the laying of marine
mines
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Hague Convention
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Only applies if “all belligerents” are
parties to the Convention (Conv.art.2)
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Hence it only applies to international
conflicts
Does not apply at all if any party to the
conflict is not a party to the Convention
Actual rules contained in its
“Regulations”
Fall 2005
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Hague Convention:
Substantive provisions
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Primarily directed at means of
conducting armed conflict
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Fall 2005
Protection of POWs and of civilians has
been superseded by other agreements
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Hague Convention:
Substantive provisions
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Applies to armies and also to militia and
volunteer corps, provided that—
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Commanded by a person responsible for his
subordinates
Fixed distinctive emblem recognizable at a
distance
Carry arms openly
Conduct their operations in accordance with laws
of war (Reg.art.1)
Also applies to civilians who organize
spontaneously to resist invasion (Reg.,art.2)
Fall 2005
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Hague Convention:
Substantive provisions
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Some provisions are quaint:
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Fall 2005
Provisions about parole release (R.art.9)
Officers continue to be paid (but by the
captor(!!)) (R.art.17)
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Hague Convention:
Substantive provisions
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The Martens clause:
The right of belligerents to adopt
means of injuring the enemy
is not unlimited
(Reg.art.22)
Fall 2005
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Hague Convention:
Subtantive Provisions
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Prohibitions (Reg.art.23)
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Fall 2005
Poison or poisoned weapons
Kill or wound treacherously
Kill or would those who have surrendered
Declare that no quarter will be given
Use arms that cause unnecessary suffering
Misuse flags (truce, national, Red Cross)
Unnecessarily destroy enemy property
Abolish rights of enemy in national courts
Require enemy nationals to serve in army
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Hague Convention:
Substantive provisions
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Other prohibitions
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Attack on undefended cities (Reg.art.25)
Qualified protection of churches, art,
science, charitable property, historic
monuments, hospitals (Reg.art. 27)
Pillage (Reg.art.28)
Special rules for spies (Reg. art. 29-31)
Fall 2005
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Hague Convention:
Substantive provisions
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Rules relating to occupation of territory
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Fall 2005
Restore peace and order, respecting
existing laws of the territory (Reg.art.43)
Private property protected (Reg.art.46)
Occupation authorities have only right of
usufruct of public buildings (Reg.art.55)
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Hague Convention:
Remedial provisions
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Remedy: Offending State must pay
compensation after the war
(Conv.art.3)!
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Offending State responsible for all persons
forming part of its armed forces
Note: A State-based system, not an
individual responsibility system
Fall 2005
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Hague Convention:
Is it customary law?
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Many provisions are now viewed as the
foundation of customary law in the
field.
Fall 2005
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Hague Convention
Some thoughts
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How does it deal with revolutions and
“popular movements”?
Does it assume that States can control
everything within their borders?
Is it relevant given modern technology?
Fall 2005
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A trip along the Rhine:
From the Hague to Geneva
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For the Hague (1907) to Geneva (1949) two
World Wars were fought; many other
conflicts; many revolutions
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These were under Hague rules and the older
forms of the Geneva conventions
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Hague relates mainly to conduct of war
Geneva relates mainly to protecting people
Beginnings of prohibitions on use of force
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Fall 2005
League of Nations
Pact of Paris
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Geneva Conventions
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Based on principle of protecting classes
of individuals
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They introduce the beginnings of
limited individual responsibility
Fall 2005
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Geneva Conventions of 1949
4 Geneva Conventions
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1.
2.
3.
4.
Wounded
Wounded and shipwrecked at sea
Prisoners of war
Civilians
Some provisions are the same in all 4
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Fall 2005
Common articles 1-3
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Geneva Conventions
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Adopted 1949, under the auspices of
the International Committee of the Red
Cross
190 parties, almost universally adopted
Provides the modern foundation for
humanitarian law
Fall 2005
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Geneva Conventions:
What conflicts covered
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Must distinguish between—
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Fall 2005
Full obligations
Limited obligations of Common Article 3
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Geneva Conventions:
Full obligations
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Conventions apply
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Fall 2005
As between parties to it, even if other
combatant States are not parties
As between combatants, even if not
parties, if they accept and apply it
Even if there is no formally declared war
(Convs.common art.2)
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Geneva Conventions:
To Whom Do They Apply
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POW Convention
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Armed forces
Militias and volunteer corps, if—
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Fall 2005
Commanded by a person responsible
Fixed distinctive sign recognizable at distance
Carrying arms openly
Conducting operations in accord with law of war
Contractors
Civilians who take up arms on attack, carry them
openly, and respect laws of war
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Geneva POW Convention:
To Whom Does It Apply
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Civilian Convention
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Any person who finds himself in the hands
of a party to the conflict (art.4), but not
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Fall 2005
Nationals of that Part
Nationals of a State with which that Party has
friendly relations
Persons detained under Geneva 1, 2, or 3
Spies and saboteurs (art.5)
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Limited obligations in noninternational conflict
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Common article 3 extends limited
obligations to persons involved in
“conflict not of an international
character”
Fall 2005
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Geneva POW Convention
Substantive Obligations
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A belligerent falling into the control of
the enemy is a POW “until such time as
as their status has been determined by
a competent tribunal.”
(Conv3,art.5,para.2)
Fall 2005
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Geneva POW Convention:
Substantive Obligations
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General principles and detailed and
specific obligations
General obligation:
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Fall 2005
“Prisoners of war must at all times be
humanely treated.” (Conv3.art.13)
“Prisoners of war are entitled in all
circumstances to respect for their persons
and their honour” (Conv.3.art.14)
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Geneva POW Convention:
Specific Obligations
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Identification
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Name, rank, date of birth, serial number
(art 17)
Quarters, food, clothing (arts. 25-28)
Medical attention (arts. 29-32)
Chaplains (arts. 33-38)
Fall 2005
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Geneva POW Convention:
Specific Obligations
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Compulsory labor (arts. 49-57)
Financial rights (arts. 58-68)
Communications (arts. 69-77)
Communications with Red Cross (arts.
78-81)
Fall 2005
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Geneva POW Convention:
Specific Obligations (cont’d)
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Discipline [not to exceed 30 days] (arts.
82-98)
Juridical Proceedings (arts. 99-108)
Release (arts. 109-119)
Information Bureaus, etc., (arts. 120125)
Fall 2005
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Geneva POW Convention:
Enforcement
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Through military orders and other measures
to suppress acts contrary to the Convention
(art. 129)
Through criminal legislation punishing “grave
breaches” (art. 129)
“Grave breaches” include acts of “wilful
killing, torture or inhuman treatment, … or
wilfully depriving a prisoner of war of the
rights of fair and regular trial ….” (art. 130)
Fall 2005
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Geneva POW Convention:
Supervision
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Role of the “Protecting Power”
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Fall 2005
Frequently the ICRC is designated as the
protecting power
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Geneva Civilian Convention:
To Whom Does It Apply
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“those who, at a given moment and in any
manner whatsoever, find themselves, in case
of a conflict or occupation, in the hands of a
Party to the conflict or Occupying Power of
which they are not nationals.” (art.4)
But not—
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Fall 2005
Citizens of that country
Citizens of a 3rd country with normal diplomatic
relations
Those protected by Geneva 1, 2, or 3
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Geneva Civilian Convention:
Substantive Provisions
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Protection of civilians (arts.27-46)
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Regulation of occupied territories (arts.47-78)
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No pillage, reprisals, hostages (art.33)
Occupying Power may create security areas (art.
49)
Destruction of private property usually prohibited
(art.53)
Regulation of internment (arts. 79-135)
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Fall 2005
In general, these parallel the POW provisions
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Geneva Civilian Convention:
Enforcement
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Each Party to enact laws to punish
“grave breaches” and to search for and
prosecute those who commit those
crimes (art. 146)
Fall 2005
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Geneva Civilian Convention:
Supervision
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Protecting Power provides supervision
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Fall 2005
Frequently this is the Red Cross
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What did this leave out?
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Internal conflicts
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Means of conducting war
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Only common article 3
Hague and armaments conventions
Conflicts not controlled by a State
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Fall 2005
Terrorism
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Geneva Protocols of 1977
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2 protocols (additional provisions) to
the Geneva Conventions:
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Fall 2005
First Protocol incorporates (and updates)
many of the provisions of the Hague
Conventions
Second Protocol deals with “conflicts not of
an international character”
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Geneva Protocol I:
Substantive Provisions
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Relaxation of requirements of uniform
Exclusion of “mercenaries” from
protection
Specificity in protection of certain areas
from attack
Fall 2005
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Geneva Protocol II:
Substantive Provisions
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Deals with “wars not of an international
character”
More specific protections than those in
Common Article 3, but not as fulsome
as those of the POW Convention
Fall 2005
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Customary International
Humanitarian Law
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The Conventions are directly applicable
only between parties, BUT—
Customary International Law has
developed that incorporates many of
their provisions, and
Some subsequent instruments (like the
Charter of the International Criminal
Court) incorporate them by reference
Fall 2005
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Genocide Convention
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Adopted in 1948
Prohibits “any of the following acts
committed with intent to destroy, in
whole or in party, a national, ethnical,
racial or religious group, as such:…”
Parties must enact laws punishing
genocide.
Fall 2005
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Torture Convention
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Adopted by UN in 1984
Broadly ratified
Applies during a state of war (art.2(2))
Fall 2005
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Torture elements
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Intentional infliction of severe pain or
suffering
For specified purposes
By (or with the consent or acquiesence
of) a public official
Fall 2005
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Human rights law
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Universal Declaration
Civil and Political Covenant
Instruments to protect
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Against racial discrimination
Women
Children
And other instruments
Fall 2005
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Interplay of Humanitarian Law
and Human Rights Law

Humanitarian law is primary in the field
of regulating conduct curing conflict
Fall 2005
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Limits on Weaponry
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Atomic
Biological
Chemical
Land Mines
Fall 2005
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Limits on Personnel
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
Child soldiers
Mercenaries
Fall 2005
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Some modern issues
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Bosnia, Kosovo
Rwanda
Darfur
Fall 2005
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Some more issues
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9/11
Abu Gharib
Saddam’s photos in the NY Post
Guantanamo
[Failed] car bombers
Fall 2005
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Questions for these issues
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Is the conflict covered?
Is the subject (person) protected?
What are the terms of the limitation?
Fall 2005
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