13/09/20151 WAR CRIMES Ray Murphy 2012

13/09/20152 Introduction Examining War Crimes as referenced in Article 8 of the ICC Statute

13/09/20153 WAR CRIMES ART 8 Can be individual or isolated acts- no need to be widespread or systematic (crimes against humanity) and no requirement of special intent (genocide).

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5 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

Jos Nigeria /09/20156

7 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

13/09/20158 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…

13/09/20159 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

13/09/ 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

Smoke rises from heavy shelling as rebels retreat during a battle with Gaddafi's troops outside the town of Bin Jawad

13/09/ 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).

13/09/ 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’

Syria 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 13/09/201514

2012 Damascus suburbs have been the scene of clashes between troops and the armed opposition – combatants, fighters or civilians? 13/09/201515

Libyan rebels during clashes with army forces loyal to Muammar Gaddafi on the outskirts of Bin Jawad 2011

13/09/ 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’

13/09/ 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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13/09/ /13/2015Dermot Groome: Evidence in War Crimes Cases 20 Military Photographers Boy who starved to death Photo by Armin Wegner People liviing in the streets Photo by Armin Wegner

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13/09/ 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

13/09/ 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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13/09/ 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

13/09/ 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

13/09/ 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

13/09/ Occupied territory Blaskic case To constitute a grave breach, the destruction unjustified by military necessity must be extensive, unlawful and wanton

Gaza /09/201529

13/09/ 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

13/09/ Journalists - Photographers

13/09/ 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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13/09/  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.

13/09/ 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

13/09/ Part II: Investigation of Senior Officials

13/09/ 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

13/09/ 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

13/09/ 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

13/09/ 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

13/09/ 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

13/09/ 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

13/09/ 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

13/09/ 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

13/09/ 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

13/09/ 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

13/09/ Offences in non- international armed conflict – 8(2)(c) Governed by Common Article 3 of the Geneva Conventions and Additional Protocol II of Common Article 3 crimes listed in para. 8 (c) must be must be committed against ‘persons taking no active part in hostilities.... ‘

13/09/ Article 8(2)(c) …. non- international conflict Those ‘protected’ are intended to be less ambiguous than in Common Art 3 of Geneva Conventions Perpetrator can be civilian or military

13/09/ 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.

13/09/ 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

13/09/ The taking of hostages The passing of sentences and the carrying out of executions without due process