War Crimes - Conference.ie

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WAR CRIMES
Ray Murphy
2012
07/04/2015
1
Introduction
• Examining War
Crimes as
referenced in
Article 8 of the ICC
Statute
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2
WAR
CRIMES ART 8
• Can be individual
or isolated actsno need to be
widespread or
systematic (crimes
against humanity)
and no requirement
of special intent
(genocide).
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3
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4
Need for Armed Conflict
• Must take place in
the context of or be
associated with
armed conflict.
• Accused aware of
factual
circumstances that
established an
armed conflict
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5
Jos Nigeria 2010
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6
No requirement for
legal evaluation by
perpetrator as to
armed conflict

No requirement for
awareness of facts
that establish
character of conflict
as international or
non-international

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Legal Basis
Common Art 2 GC
• …All cases of declared war or
of any other armed conflict
which may arise between two
or more high contracting
parties …
• …All cases of partial or total
occupation…
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8
International Armed
Conflict
• Tadic - ..whenever there is a
resort to armed force between
states
• Delalic - …any difference
arising between two states and
leading to intervention of
members of armed forces…
• Overall control test
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Tadic – war crimes
• Must be ‘serious infringement’
ie involve grave consequences
for victim/breach of rule
protecting important values
• Rule violated must be part of
customary/treaty law
• Must entail individual criminal
responsibility
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Smoke rises from heavy shelling as
rebels retreat during a battle with
Gaddafi's troops outside the town of
Bin Jawad
1. Grave Breaches of
the GC’s, Geneva IV,
Art. 147 – Art 8(2)(a)
– Must be in the
context of an
international
armed conflict
and victims must
be protected
persons (see
Geneva IV, para.
4).
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Protected
persons/objects
• Art 4 GC IV - ‘those
who…find themselves…in the
hands of a Party to the conflict
or Occupying Power of which
they are not nationals’
• Tadic – ‘control by this Party
over persons in a given
territory,…crucial test’
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13
Syria 2012 - The army launched an assault on
opposition strongholds in the city of Homs -reports
emerged of a humanitarian crisis as the Bab Amr
neighbourhood was under siege and shelling for
nearly a month
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14
2012 Damascus suburbs have been the
scene of clashes between troops and the
armed opposition – combatants, fighters or
civilians?
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15
Libyan rebels during clashes with army
forces loyal to Muammar Gaddafi on the
outskirts of Bin Jawad 2011
• Delalic
‘If individuals not entitled to
protections of Third
Convention…he or she
necessarily falls into ambit of
Geneva IV, provided Article 4
requirement satisfied’
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Wilful killing
• Killed same as caused
death/murder
• Can be act or omission
• Intent to kill or cause grevious
bodily harm
• Wilful encompasses reckless
acts
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Military Photographers
People liviing in the streets
Photo by Armin Wegner
Boy who starved to death
Photo by Armin Wegner
4/7/2015
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Dermot Groome: Evidence in War
Crimes Cases
20
20
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Art. 8(2)(a)(ii) Torture or
inhuman treatment
• ICC incorporates purposive
element of Torture Convention
• No need for official capacity
• Deliberate act or omission
• No precise threshold level of
suffering or pain
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Art. 1 - For the purposes of CAT, the
term "torture" means..
• any act by which severe pain or
suffering, whether physical or mental, is
intentionally inflicted on a person
• for such purposes as obtaining from him
or a third person information or a
confession, punishing him for an act he
or a third person …,
• or intimidating or coercing him or a third
person,
• or for any reason based on
discrimination of any kind, when such
pain or suffering is inflicted by or at the
instigation of or with the consent or
acquiescence of a public official or
other person acting in an official
capacity.
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Inhuman treatment
• Severe often used to indicate
gravity of pain
• It is purposive element of war
crime of torture that
distinguishes the two offences
– departure from Ad Hoc
Tribunals where severe pain
indicated torture and serious
pain indicated inhuman
treatment
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Wilfully causing great
suffering/serious injury
• Distinguished from torture
primarily on basis that act or
omission need not be for
prohibited purpose
i.e. no purposive requirement –
Delalic case
• Act or omission must be
intentional
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Art 8(2)(a)(iv) Extensive
destruction of property
• Not justified by military
necessity
Covers only measure that are
lawful in accordance with laws
of war
• Such property protected by
one or more Geneva
Convention of 1949
Thus this war crime only covers
property specifically protected
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Occupied territory
• Blaskic case
To constitute a grave breach,
the destruction unjustified by
military necessity must be
extensive, unlawful and wanton
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Gaza 2009
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Art. 8(2)(a)(vi) wilful
deprivation of fair trial
•
•
•
•
Right to counsel
Right to prepare defence
To be informed of charges
Independent and impartial
court
• Right to interpreter
• Length of trial a factor
See judicial guarantees in
Geneva
Conventions/Additional
Protocols
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Journalists - Photographers
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31
2. International Law
–
Art. 8(2)(b)
Other serious
violations of the
laws and customs
applicable in
international armed
conflict,
within the
established
framework of
international law.
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Limited
to international
armed conflict. Concerns
the laws for the conduct
of hostilities (Hague law),
victims need not be
‘protected persons;’ also
aimed at protecting
combatants.
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Art 8(2)(b)(i)
• Intentional directing attack
against civilians not taking
direct part in hostilities
• No result required
• Prohibition is absolute but….
• Art 19 GC IV
• Collateral damage not unlawful
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Part II: Investigation of Senior Officials
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36
Art 8(2)(b)(ii)
• Intentionally directing attack
against civilian objects
• No result required
• Art. 19 GC IV
• Military objective Art 52 AP I Nature, location, purpose or
use make effective contribution
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Art 8(2)(b)(iii) Attacks on UN
and humanitarian workers
etc
• No result required
• Ignorance of law no excuse
• 1994 Convention on Safety
of UN Personnel
• Complex provisions
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Art 8(2)(b)(iv)
• Intentionally launching attack in
the knowledge that it will cause
incidental loss of life to civilians
or damage to civilian objects or
widespread, long-term and
severe damage to natural
environment which is clearly
excessive in relation military
advantage
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Art 8(2)(b)(vii) improper
use of flag and
emblems
• War crime of improper use of
flag of truce
• …flag, insignia, or uniform of
hostile party or United Nations
• …distinctive emblems of
Geneva Conventions
• Improper implies contrary to
international law
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• Perpetrator need only be
aware that death could
occur - Art 30
• Perfidy
• Use of enemy uniforms
during attack prohibited –
use at other times not
forbidden
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Contd
• Proportionality principle
• Evaluation must be made
before attack
• Objective test – court will
respect reasonable
judgements made in good faith
– forseeabiliy test
• Broader purpose of military
operation taken into account
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42
Art8(2)(b)(xxii) – Sexual
Crimes
•
•
•
•
•
•
Rape
Sexual slavery
Enforced prostitution
Forced pregnancy
Enforced sterilisation
Any other form of sexual
violence constituting grave
breach of GCs
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Rape
• Case law not uniform
• Coercive circumstances do not
need show of physical force
• No definition of rape under IHL
• Protection under Art 27(2) GC
IV, Art 75(2)(b)AP I and Art
76(1) API
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Rape - cases
• Akayesu – cannot be captured
by mechanical description
• Delalic
• Furujdzija – sexual
penetration/by coercion or
force or threat of force
• Kunarac – emphasised issue
of consent
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45
Potential Perpetrators
• Military or similar personnel
• Members of Government –
Tokyo,
Failure to prevent…election to
continue in government
• Party officials and
administrators
Civilians – Zyklon B case
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46
3. Offences in noninternational armed
conflict – 8(2)(c)
• Governed by Common
Article 3 of the Geneva
Conventions and
Additional Protocol II of
1977.
• Common Article 3 crimes
listed in para. 8 (c) must be
must be committed against
‘persons taking no active
part in hostilities.... ‘
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Article 8(2)(c) …. noninternational conflict
• Those ‘protected’ are
intended to be less
ambiguous than in
Common Art 3 of Geneva
Conventions
• Perpetrator can be civilian
or military
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Art 8(2)(d) reiterates the
distinction between internal
disturbances and internal conflict

Art 8(2)(e) offences are largely
drawn from Protocol II - elements
of most crimes identical to that for
international armed conflict

Art 8(2)(f) seeks to distinguish
between Common Article 3
situations and those where
Protocol II may apply i.e.
protracted internal armed conflict.

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Specific Offences
• Violence to life and
person, in particular
murder of all kinds,
mutilation, cruel
treatment and torture
• Committing outrages
upon personal dignity,
in particular
humiliating and
degrading treatment
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50
• The taking of
hostages
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• The passing of
sentences and
the carrying out
of executions
without due
process
51
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