International Law Unit 10: War Crimes Prof. Fred Morrison Fall 2005

War Crimes2 Outline of the Presentation (Morning Presentation) War Crimes Historical development Treaty law and customary law Relevant treaties Hague and Geneva Conventions and Protocols Arms limitation treaties Anti-aggression rules Customary law

Fall 2005War Crimes3 Outline of the Presentation (Afternoon presentation) War crimes procedures Prosecutions within own forces Military commissions Civilians and civilian proceedings International proceedings Nuremberg Yugoslavia, Rwanda Sierra Leone, Cambodia The International Criminal Court

War Crimes: I. History and Introduction

Fall 2005War Crimes5 War crimes: the Origins Middle Ages: the concept of chivalry War as an art form The decline of chivalry Crusades: War with the Infidel Reformation: Loss of common bond Rise of nationalism: State as ultimate Changes in weaponry

Fall 2005War Crimes6 War crimes: Emergence of the modern concept in Europe Europe, 1859 (Battle of Solferino) 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)

Fall 2005War Crimes7 War crimes: Emergence of the modern concept in the U.S. The American Civil War ( ) 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 2005War Crimes8 War crimes: Development of the modern concept Hague Conferences, 1899 and 1907 Fyodor Fyodorovich Martens, Russian diplomat Hague Conventions 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 2005War Crimes9 War crimes: Making aggressive war illegal Limits on the use of force League of Nations Covenant, 1919 Pact of Paris, 1928 United Nations Charter, 1945

Fall 2005War Crimes10 War crimes: Genocide Genocide Convention, 1948 Really a human rights convention; applies also outside of the war context

Fall 2005War Crimes11 War crimes: Codifying what is allowed and prohibited Geneva conventions, 1949 I. Wounded and Sick II. Shipwrecked III. Prisoners of War IV. Civilians Geneva protocols, 1977 I. Protection of Victimes II. Non-international Conflicts

Fall 2005War Crimes12 War crimes: Limiting weapons Small explosive projectiles Atomic Biological Chemical Land Mines Child soldiers Mercenaries

Fall 2005War Crimes13 War crimes trials Andersonville, 1865 The Treaty of Versailles Provisions about the Kaiser The Leipzig trials Nuremberg and Tokyo, 1946 Lieut. Calley

Fall 2005War Crimes14 War crimes trials: recent Yugoslav tribunal Rwandan tribunal Sierra Leone tribunal International Criminal Court Referral of charges on Dafur

Fall 2005War Crimes15 War crimes: Some important influences Changes in weaponry Greater destructive capability Changes in civilian involvement “Total war” Changes in communication The “CNN effect”

Fall 2005War Crimes16 Interplay of Humanitarian Law and Human Rights Law Humanitarian law Law regulating the conduct of armed conflict Human rights law Law regulating the treatment of individuals by governments

II. Treaties & Customary Law

Fall 2005War Crimes18 Treaties and Customary Law Treaties Established by signature and ratification (or accession or acceptance) Binding only on parties Binding only in their own terms

Fall 2005War Crimes19 Bibliographic note For easy access to information about humanitarian law, go to the web site of the International Committee of the Red Cross: For texts, etc., of treaties, go to

Fall 2005War Crimes20 Treaties and Customary Law Customary Law Created by long practice accepted as law Binding on all States Less precise statement of rules

Fall 2005War Crimes21 Types of treaties 1. Classic war crimes treaties Hague Conventions and Regulations Geneva Conventions Geneva Protocols 2. Some special treaties Genocide Torture

Fall 2005War Crimes22 Types of Treaties 3.Armaments/Disarmament treaties Atomic Biological Chemical Land Mines Child Soldiers ICBM

Fall 2005War Crimes23 Types of treaties 4. Relationship to general human rights treaties: Relationship of “human rights law” to “humanitarian law”

Fall 2005War Crimes24 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? Are the participants parties? Is the conflict “international”? Conflicts with non-signatory parties?

Fall 2005War Crimes25 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 2005War Crimes26 Substantive Treaties: Part 1 Classic War Crimes Treaties Hague Conventions, 1907 Geneva Conventions, 1949 Geneva Protocols, 1977

Fall 2005War Crimes27 Hague Convention and Regulations Adopted 1907 Only 35 parties; mostly European and Latin American Nevertheless forms the basis of much of modern humanitarian law Relatively brief

Fall 2005War Crimes28 Hague Convention It is one of a series of conventions proposed by the Hague Conferences, regulating such topics as: The formalities of declaring war The working of prize courts Maritime warfare and the laying of marine mines

Fall 2005War Crimes29 Hague Convention Only applies if “all belligerents” are parties to the Convention (Conv.art.2) 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 2005War Crimes30 Hague Convention: Substantive provisions Primarily directed at means of conducting armed conflict Protection of POWs and of civilians has been superseded by other agreements

Fall 2005War Crimes31 Hague Convention: Substantive provisions Applies to armies and also to militia and volunteer corps, provided that— 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 2005War Crimes32 Hague Convention: Substantive provisions Some provisions are quaint: Provisions about parole release (R.art.9) Officers continue to be paid (but by the captor(!!)) (R.art.17)

Fall 2005War Crimes33 Hague Convention: Substantive provisions The Martens clause: The right of belligerents to adopt means of injuring the enemy is not unlimited (Reg.art.22)

Fall 2005War Crimes34 Hague Convention: Subtantive Provisions Prohibitions (Reg.art.23) 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

Fall 2005War Crimes35 Hague Convention: Substantive provisions Other prohibitions 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 )

Fall 2005War Crimes36 Hague Convention: Substantive provisions Rules relating to occupation of territory 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)

Fall 2005War Crimes37 Hague Convention: Remedial provisions Remedy: Offending State must pay compensation after the war (Conv.art.3)! Offending State responsible for all persons forming part of its armed forces Note: A State-based system, not an individual responsibility system

Fall 2005War Crimes38 Hague Convention: Is it customary law? Many provisions are now viewed as the foundation of customary law in the field.

Fall 2005War Crimes39 Hague Convention Some thoughts 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 2005War Crimes40 A trip along the Rhine: From the Hague to Geneva For the Hague (1907) to Geneva (1949) two World Wars were fought; many other conflicts; many revolutions These were under Hague rules and the older forms of the Geneva conventions Hague relates mainly to conduct of war Geneva relates mainly to protecting people Beginnings of prohibitions on use of force League of Nations Pact of Paris

Fall 2005War Crimes41 Geneva Conventions Based on principle of protecting classes of individuals They introduce the beginnings of limited individual responsibility

Fall 2005War Crimes42 Geneva Conventions of Geneva Conventions 1. Wounded 2. Wounded and shipwrecked at sea 3. Prisoners of war 4. Civilians Some provisions are the same in all 4 Common articles 1-3

Fall 2005War Crimes43 Geneva Conventions 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 2005War Crimes44 Geneva Conventions: What conflicts covered Must distinguish between— Full obligations Limited obligations of Common Article 3

Fall 2005War Crimes45 Geneva Conventions: Full obligations Conventions apply 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)

Fall 2005War Crimes46 Geneva Conventions: To Whom Do They Apply POW Convention Armed forces Militias and volunteer corps, if— 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

Fall 2005War Crimes47 Geneva POW Convention: To Whom Does It Apply Civilian Convention Any person who finds himself in the hands of a party to the conflict (art.4), but not 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)

Fall 2005War Crimes48 Limited obligations in non- international conflict Common article 3 extends limited obligations to persons involved in “conflict not of an international character”

Fall 2005War Crimes49 Geneva POW Convention Substantive Obligations 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 2005War Crimes50 Geneva POW Convention: Substantive Obligations General principles and detailed and specific obligations General obligation: “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)

Fall 2005War Crimes51 Geneva POW Convention: Specific Obligations Identification Name, rank, date of birth, serial number (art 17) Quarters, food, clothing (arts ) Medical attention (arts ) Chaplains (arts )

Fall 2005War Crimes52 Geneva POW Convention: Specific Obligations Compulsory labor (arts ) Financial rights (arts ) Communications (arts ) Communications with Red Cross (arts )

Fall 2005War Crimes53 Geneva POW Convention: Specific Obligations (cont’d) Discipline [not to exceed 30 days] (arts ) Juridical Proceedings (arts ) Release (arts ) Information Bureaus, etc., (arts )

Fall 2005War Crimes54 Geneva POW Convention: Enforcement 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 2005War Crimes55 Geneva POW Convention: Supervision Role of the “Protecting Power” Frequently the ICRC is designated as the protecting power

Fall 2005War Crimes56 Geneva Civilian Convention: To Whom Does It Apply “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— Citizens of that country Citizens of a 3 rd country with normal diplomatic relations Those protected by Geneva 1, 2, or 3

Fall 2005War Crimes57 Geneva Civilian Convention: Substantive Provisions Protection of civilians (arts.27-46) No pillage, reprisals, hostages (art.33) Regulation of occupied territories (arts.47-78) Occupying Power may create security areas (art. 49) Destruction of private property usually prohibited (art.53) Regulation of internment (arts ) In general, these parallel the POW provisions

Fall 2005War Crimes58 Geneva Civilian Convention: Enforcement Each Party to enact laws to punish “grave breaches” and to search for and prosecute those who commit those crimes (art. 146)

Fall 2005War Crimes59 Geneva Civilian Convention: Supervision Protecting Power provides supervision Frequently this is the Red Cross

Fall 2005War Crimes60 What did this leave out? Internal conflicts Only common article 3 Means of conducting war Hague and armaments conventions Conflicts not controlled by a State Terrorism

Fall 2005War Crimes61 Geneva Protocols of protocols (additional provisions) to the Geneva Conventions: First Protocol incorporates (and updates) many of the provisions of the Hague Conventions Second Protocol deals with “conflicts not of an international character”

Fall 2005War Crimes62 Geneva Protocol I: Substantive Provisions Relaxation of requirements of uniform Exclusion of “mercenaries” from protection Specificity in protection of certain areas from attack

Fall 2005War Crimes63 Geneva Protocol II: Substantive Provisions 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 2005War Crimes64 Customary International Humanitarian Law 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 2005War Crimes65 Genocide Convention 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 2005War Crimes66 Torture Convention Adopted by UN in 1984 Broadly ratified Applies during a state of war (art.2(2))

Fall 2005War Crimes67 Torture elements Intentional infliction of severe pain or suffering For specified purposes By (or with the consent or acquiesence of) a public official

Fall 2005War Crimes68 Human rights law Universal Declaration Civil and Political Covenant Instruments to protect Against racial discrimination Women Children And other instruments

Fall 2005War Crimes69 Interplay of Humanitarian Law and Human Rights Law Humanitarian law is primary in the field of regulating conduct curing conflict

Fall 2005War Crimes70 Limits on Weaponry Atomic Biological Chemical Land Mines

Fall 2005War Crimes71 Limits on Personnel Child soldiers Mercenaries

Fall 2005War Crimes72 Some modern issues Bosnia, Kosovo Rwanda Darfur

Fall 2005War Crimes73 Some more issues 9/11 Abu Gharib Saddam’s photos in the NY Post Guantanamo [Failed] car bombers

Fall 2005War Crimes74 Questions for these issues Is the conflict covered? Is the subject (person) protected? What are the terms of the limitation?