1. 13/09/20151 WAR CRIMES Ray Murphy 2012

2. 13/09/20152 Introduction Examining War Crimes as referenced in Article 8 of the ICC Statute

3. 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. 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

6. Jos Nigeria 2010 13/09/20156

7. 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

8. 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…

9. 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

10. 13/09/201510 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

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

12. 13/09/201512 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).

13. 13/09/201513 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’

14. 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 13/09/201514

15. 2012 Damascus suburbs have been the scene of clashes between troops and the armed opposition – combatants, fighters or civilians? 13/09/201515

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

17. 13/09/201517 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’

18. 13/09/201518 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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20. 13/09/201520 9/13/2015Dermot 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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22. 13/09/201522 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

23. 13/09/201523 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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25. 13/09/201525 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

26. 13/09/201526 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

27. 13/09/201527 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

28. 13/09/201528 Occupied territory Blaskic case To constitute a grave breach, the destruction unjustified by military necessity must be extensive, unlawful and wanton

29. Gaza 2009 13/09/201529

30. 13/09/201530 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

31. 13/09/201531 Journalists - Photographers

32. 13/09/201532 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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34. 13/09/201534  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.

35. 13/09/201535 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

36. 13/09/201536 Part II: Investigation of Senior Officials

37. 13/09/201537 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

38. 13/09/201538 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

39. 13/09/201539 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

40. 13/09/201540 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

41. 13/09/201541 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

42. 13/09/201542 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

43. 13/09/201543 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

44. 13/09/201544 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

45. 13/09/201545 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

46. 13/09/201546 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

47. 13/09/201547 3. Offences in non- international 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.... ‘

48. 13/09/201548 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

49. 13/09/201549 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.

50. 13/09/201550 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

51. 13/09/201551 The taking of hostages The passing of sentences and the carrying out of executions without due process