War crime

A war crime is a serious violation of the rules that apply during armed conflict, known as international humanitarian law (IHL) and the law of war. A person who commits one can be held criminally responsible under international law. It is not the same as Crimes against humanity.

Examples of actions by fighters that can lead to personal criminal responsibility include intentionally killing civilians, torture, taking hostages, destroying civilian property without need, deception by perfidy, pillaging, refusing to spare enemies who have surrendered, the conscription of children in the military, and ordering mass killings, including genocide or ethnic cleansing. Ignoring the rules of distinction, proportionality and military necessity can also be a war crime.

The idea of war crimes grew out of customary international law, which countries fighting each other followed and later wrote down. This applied to wars between sovereign states, such as the 1863 Lieber Code of the Union Army in the American Civil War and the Hague Conventions of 1899 and 1907 for wars between countries.

After the Second World War, trials of the leaders of the Axis powers set up the Nuremberg principles. One of these is that international criminal law decides what counts as a war crime. In 1899, the Geneva Conventions legally defined new war crimes and allowed states to use universal jurisdiction to put war criminals on trial. In the late 20th and early 21st centuries, international courts defined more kinds of war crimes that apply to civil wars.

International humanitarian law

War crimes are serious violations of the rules of international humanitarian law that carry individual criminal responsibility. The laws of war allow fighting, but a war crime happens when unnecessary suffering is caused to an enemy. Examples include attacking people under a flag of truce and using biological weapons, which are banned under the Biological Weapons Convention. Mistreating prisoners of war or civilians is also a war crime. Some war crimes are part of mass murder and genocide, which are covered as crimes against humanity. International courts, including the Nuremberg Trials and Tokyo Trials, have been held to deal with war crimes. Later courts included the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.

The United Nations defines war crimes using Article 8 of the Rome Statute, the treaty that set up the International Criminal Court. War crimes also include deliberate attacks on the people and property of neutral states, such as the Japanese attack on Pearl Harbor. Some people say that the rules of war favor the winners, which is called "victor's justice." For example, some bombings during World War II, including the firebombing of Dresden and the atomic bombings of Hiroshima and Nagasaki, were not ruled war crimes. The 1949 Third Geneva Convention later protected soldiers who gave up after a surrender, as well as those taken prisoner during fighting.

Legality of civilian casualties

Under the law of armed conflict, the death of non-combatants is not always against the rules, because many things must be considered. Civilians cannot be made the target of an attack. However, if civilians are hurt or killed during an attack on a military target, this can be allowed under the rules of proportionality and military necessity. Military necessity allows harm to people that cannot be avoided during fighting, but it does not allow killing innocent people for revenge. Destroying property is lawful only when the needs of war clearly demand it. For example, an attack on an ammunition depot or a terrorist training camp is not banned just because a farmer is working in a nearby field. An extraordinary military advantage would be needed to justify an attack that risked harming thousands of civilians. Because some cases are very hard to judge, states have chosen to use a "clearly excessive" standard to decide whether a crime has occurred. When there is no reason for military action, such as civilians being made the target, there is no need to weigh proportionality to see that the attack is unlawful.

In the former Yugoslavia, NATO pilots hit the Chinese embassy in Belgrade, a civilian site with no military importance. The pilots had relied on the target information they were given. The committee ruled that the aircrew should not be blamed, and that it was inappropriate to assign criminal responsibility to senior leaders who had been given wrong information. The Rendulic Rule states that commanders are judged on the information they had at the time, not on information that came to light later. German General Lothar Rendulic was charged for ordering wide destruction of civilian buildings and lands during a retreat, as part of a scorched earth policy. He believed a Soviet occupation of Finland was a serious risk and had overestimated that risk, but he argued that Hague IV allowed the destruction because it was necessary for war. He was acquitted of that charge.

History

See also: List of war crimes

In 1474, the first trial for a war crime was held. Peter von Hagenbach was tried by a special court of the Holy Roman Empire for command responsibility for his soldiers' actions, because as a knight he was thought to have a duty to stop criminal behaviour by a military force. He said he had obeyed superior orders, but he was convicted, sentenced to death, and beheaded. The Hague Conventions of 1899 and 1907, along with the Geneva Conventions, were among the first formal statements of the laws of war.

Main article: Hague Conventions of 1899 and 1907

The Lieber Code was written early in the American Civil War. President Abraham Lincoln issued it as General Order 100 on April 24, 1863, just months after the military executions at Mankato, Minnesota. It was written by Franz Lieber, and Lincoln made it military law for the Union Army. It defined command responsibility and crimes against humanity for war crimes. The Geneva Conventions are four related treaties, adopted and expanded from 1864 to 1949, that form a legal basis for the conduct of war. The First Geneva Convention was adopted in 1864 and revised in 1906 and 1929. The Second Geneva Convention was adopted in 1906, and the Third Geneva Convention was adopted in 1929. The Fourth Geneva Convention was first adopted in 1949, based on parts of the 1907 Hague Convention IV. Two Additional Protocols were adopted in 1977, and Protocol III was added in 2005.

Main article: Leipzig war crimes trials

Just after the First World War, world governments started to create a code defining war crimes. In 1921, the German Supreme Court tried a small number of German military personnel from that war for alleged war crimes.

Main articles: London Charter of the International Military Tribunal and Nuremberg trials

The modern concept of war crime was further developed under the Nuremberg trials, based on the London Charter published on August 8, 1945 (see Nuremberg principles). The charter also defined crimes against peace and crimes against humanity, which often happen during wars alongside war crimes.

Main article: International Military Tribunal for the Far East

The Tokyo War Crimes Tribunal, also known as the Tokyo Trial, was convened on May 3, 1946, to try the leaders of the Empire of Japan. They were tried for crimes against peace, war crimes, and crimes against humanity committed during the Second World War.

On July 1, 2002, the International Criminal Court, a treaty-based court located in The Hague, began prosecuting war crimes committed on or after that date. Several nations, most notably the United States, China, Russia, and Israel, have criticized the court, and the United States still takes part as an observer. Article 12 of the Rome Statute gives the court jurisdiction over citizens of non-contracting states accused of crimes in the territory of one of the state parties. The court only has jurisdiction when crimes are "part of a plan or policy or as part of a large-scale commission of such crimes."

Main articles: List of war crimes, List of people indicted in the International Criminal Court, and List of convicted war criminals

Many present and former leaders have been charged with war crimes. Russian President Vladimir Putin was charged for his part in the illegal taking of children from Ukraine and moving them into Russia during the Russian invasion of Ukraine. The International Criminal Court issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his former Defense Minister Yoav Gallant for alleged war crimes and crimes against humanity in the Gaza war. After World War II, leaders such as German Großadmiral and President Karl Dönitz and Japanese Prime Minister Hideki Tōjō were also charged. Former Serbian President Slobodan Milošević was tried, and former Bosnian Serb President Radovan Karadžić was found guilty of genocide in Srebrenica, war crimes, and crimes against humanity. Former Libyan leader Muammar Gaddafi was indicted during the 2011 Libyan civil war, but he was killed in October 2011 before he could stand trial.

Other people have also been charged for their roles in wartime events. Ali Hassan Abd al-Majid al-Tikriti, known as "Chemical Ali," was executed by post-Ba'athist Iraq for his part in gassing Kurdish villages during the Iran-Iraq War. William Calley, a former U.S. Army officer, was found guilty of murder for his role in the My Lai massacre. Hermann Göring, Commander in Chief of the Luftwaffe, and Albert Speer, Minister of Armaments and War Production in Nazi Germany from 1942 to 1945, were also among those named. Ratko Mladić was indicted for genocide during the Bosnian War, and he was later found guilty and sentenced to life in prison.