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The notion of crimes of war has been known in the Western legal tradition since classical antiquity. For the ancient Greeks it was part of Hellenic customary law that provided some basic if ill-defined norms for the protection of civilians, suppliants, and prisoners in warfare between the Greek states. While this notion has persisted as the “laws and customs of war,” it was only with the incipient development of a body of international law at the end of the nineteenth and beginning of the twentieth centuries that it began to take shape in its modern form as a central category in the body of norms whose aim is to regulate the violence of armed conflict. The “laws and customs of war,” as the name indicates, apply only in the context of armed conflict. As the dual terminology “laws” and “customs” also implies, in the modern period these norms are regarded as having a dual basis. On the one hand, they are defined by the body of statutory law that has developed since the first Hague Conventions adopted around the beginning of the twentieth century. On the other hand, such conventions represent only one source of the international law of armed conflict. The codifications do not exhaust this body of law, which also arises from the customs and usages of warfare as reflected in the practices of nations.
Three major phases of development of the notion of war crimes in the modern period can be identified. The first begins with the adoption of the Hague Conventions of 1899 and 1907, regulating the conduct of hostilities and the employment of various kinds of weapons and modes of warfare. Most immediately relevant to war crimes is the 1907 Hague Convention IV on “The Laws and Customs of War on Land” and particularly its provisions defining the limits of military necessity and limiting the violence that may be employed against cities and other civilian targets (Articles 22-28). While the treatment of prisoners of war is addressed in the Hague Conventions, it was the Geneva Convention of 1929 that provided the basic legal framework for this subject in the pre-World War II (1939-1945) era. While the distinction between “Geneva law” and “Hague law” was widely regarded as fundamental in earlier periods, it has, as we will see, largely ceased to have any relevance in the contemporary period.
The experience of “total war” in the European and Asia-Pacific theaters in World War II involved the total destruction of major civilian centers, the displacement of entire populations, industrialized murder, civilian deaths in the tens of millions, and devastation on a scale hitherto unimagined. Total war led to a widespread recognition that the laws of war had to be revised so as to reflect the exigencies of a new age. The first major step in this direction was taken by the victorious Allies in the creation of two international criminal tribunals in Nuremberg and Tokyo to try German and Japanese military and civilian leaders for crimes against peace, war crimes, and crimes against humanity. The definition of “war crimes” in the Nuremberg Charter provided an important and expansive definition of the scope of such criminal conduct:
Violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.
For the first time governmental and military leaders were held criminally responsible as individuals and punished by the Nuremberg and Tokyo tribunals for their roles in planning, instigating, ordering, or perpetrating such war crimes. In addition, building upon the Nuremberg and Tokyo Charters, the Allies created a legal framework for national war crimes tribunals that convicted thousands of Japanese and German war criminals of war crimes. This step marks the decisive move into the contemporary age of individual accountability for war crimes and other violations of international law regulating armed conflict.
During the same period in the aftermath of World War II, the four Geneva Conventions of 1949 and the Genocide Convention of 1948 also represent major landmarks in the development of the contemporary legal framework regulating armed conflict. The Geneva Conventions of 1949 greatly expanded and refined this framework and also made decisive contributions to the law of war crimes. Particularly grave violations falling within the category of war crimes were designated as “grave breaches” of the conventions. These include: willful killing; torture or inhuman treatment; biological experiments; unlawful deportation or transfer, taking of hostages, etc. (The 1977 Protocol 1 to the 1949 conventions greatly expands the category of grave breaches, particularly by including various limitations on the conditions under which civilian targets may be made the object of attack.) Further, for the first time the coverage of this body of law was extended to noninternational conflicts. That is, previously war crimes by definition involved violations committed in time of war or serious armed conflicts between nations. The hitherto seemingly inviolable principle of national sovereignty had protected governments from interference with what they did within their own territory to their own citizens. The development of the category of “crimes against humanity” represented one important prong in limiting this principle, and Article 3 of the 1949 Geneva Conventions represented another. The coverage of the 1949 conventions as to war crimes was extended further by the two 1977 protocols to the 1949 conventions, the first covering international conflicts the second internal ones.
Common Article 3, so called because it is found in all four of the 1949 conventions, extends basic minimum protections of international law to purely internal conflicts and thus brings the notion of war crimes into the sphere of the kinds of internal conflicts that have been so prevalent in the post-World War II era. Common Article 3 provides:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:
- Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
The third phase in the development of the body of law defining and punishing war crimes began with the creation of the Ad Hoc International Criminal Tribunals for Rwanda and the former Yugoslavia (ICTR and ICTY) in 1993-1994. Whereas war crimes had not been punished by international tribunals since Nuremberg and Tokyo, the ICTY and ICTR ushered in an age of the institutionalization of such prosecutions, reaching fulfillment in the creation of the permanent International Criminal Court (ICC) in the Hague in 2002. All three of these bodies have made important contributions to the definition, jurisprudence, and punishment of war crimes, as have the so-called international “hybrid tribunals” in East Timor, Kosovo, Bosnia, Sierra Leone, and Cambodia.
The statutes of all three of these international criminal tribunals include war crimes as one of the major categories of violations of international law within the jurisdiction of these courts. (See, e.g., ICTY Statute Articles 2 and 3; ICC Statute Article 8.) The Appeals Chamber of the ICTY has clarified the relations between the categories of “grave breaches,” other violations of the “laws and customs of war” defined by the Hague and Geneva Conventions, and common Article 3. It has ruled that all of these norms are war crimes and that the previous distinction between “Hague law” and “Geneva law” is no longer relevant. (See, e.g., the Tadic Jursidiction Decision, para. 87, and the Celebici Appeals Judgment, paras. 132-133.)
The statute of the ICC makes this clear in Article 8 by specifying that the category of war crimes includes grave breaches and “other serious violations of the laws and customs of war applicable in international armed conflict” as well as common Article 3 and other “serious violations of international law applicable in non-international armed conflict.” The category of war crimes has thus expanded to encompass a very wide range of offenses committed in international or internal conflicts. These offenses have also become much more clearly defined than in previous eras. In particular, the jurisprudence of these courts has provided authoritative discussions and definitions of the elements of these offenses. This represents an important contribution to the interpretation and applications of such crimes because the post-World War II trials had left them largely undefined. Most recently, the ICC has promulgated the Elements of Crimes, which also includes definitions of each of the key components of all major crimes of war. As the ICC assumes an ever more prominent role in the application of international humanitarian law, its definitions of the elements of war crimes is likely to prove to be of decisive influence.
Bibliography:
- Detter, Ingrid. 2000. The Law of War, 2nd ed. Cambridge, U.K.: Cambridge University Press.
- Neier, Aryeh. 1998. War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice. New York: Times Books.
- Christian, R. F. 1962. Tolstoy’s “War and Peace”: A Study. Oxford: Clarendon Press.
- Clay, George R. 1998. Tolstoy’s Phoenix: From Method to Meaning in War and Peace. Evanston, IL: Northwestern University Press.
- Eikhembaum, Boris. 1982. Tolstoi in the Sixties. Trans. Duffield White. Ann Arbor, MI: Ardis.
- Feuer, Kathryn B. 1996. Tolstoy and the Genesis of War and Peace, eds. Robin Feuer Miller and Donna Tussing Orwin. Ithaca, NY: Cornell University Press.
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- Tolstoy, Leo. [1863–1869] 1996. War and Peace. Trans. Louise and Aylmer Maude. Ed. George Gibian. New York: Norton.
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