Overview: War Crimes- Violations Of International Humanitarian Law

[The author, Iqra Khan is a second-year student of B.A.LLB. in Jamia Millia Islamia]

INTRODUCTION

War is simply a dispute between the states that have not been resolved through any of the dispute resolving mechanisms. The war is the then the fight between two states using weapons and armouries. The conduct of war is regulated by International Humanitarian Law.

According to the United Nations, war crimes are those violations of international humanitarian law (treaty or customary law) that incur individual criminal responsibility under international law. As a result, and in contrast to the crimes of genocide and crimes against humanity, war crimes must always take place in the context of armed conflict, either international or non-international[I]. There can be no exhaustive list of war crimes, therefore new methods to commit crimes in an inhumane way are also considered as war crimes. War crimes are crimes against humanity. They are against human rights and are condemned under International Law.

War Crimes, can be divided into three parts[ii]

1. Traditional war crimes
2. Crimes against humanity
3. Crimes against peace

HISTORY OF WAR CRIMES

At the time of the First World War, such crimes were not considered as war crimes rather they were considered an essential part of the wars. There were then again huge numbers of crime that were brutal in the second world war and also in the holocaust, in the genocide of Jews, a tribunal was set up and then there was a trail in Nuremberg and Tokyo.

NUREMBERG TRIAL

It was held to prosecute the war criminals (Nazi) for the charges of war crimes against the Jews. It was the first international criminal trial. The Allied powers wanted to bring the criminals to try to punish them for the genocide that was committed. Since the trial was to be conducted by the Allied (U.S., France, Britain and the Soviet Union) powers, they had difficulties to decide on what procedure should be followed. Therefore, they together created the laws and procedures especially for the Nuremberg Trails; the London Charter of the International Military Tribunal (IMT). This charter categorized war crimes into three categories.

The trails of the Nuremberg have a way to the trails of Tokyo. It was also responsible for the United Nations Genocide Convention (1948), as well as the Geneva Convention on the Laws and Customs of War (1949)[iii]. They were the first trials held for crimes against humanity. The judgment was declared as the defendants were found guilty. Certain objections were raised by the defendants that the order was given to them by the superior. This plea was rejected, although it was considered at the time of sentencing. The principal of nullumcrimen sine lege, nullapoena sine lege, which says that there can be no punishment of a crime, without a pre-existing law. To this, the tribunal held that murder, maiming and such grave crimes are punishable in every civilized state and punishable in their legal systems. The trial ended but there was criticism of the judgment that it was a biased judgment.

TOKYO TRIALS

International Military Tribunal For the Far East also known as Tokyo Trails.the trial was conducted to prosecute the twenty-eight accused of the war crimes in Japan. The trials were set on the lines of the Nuremberg trials, but apart from the judges of the victorious state, there were judges from different states as well. [iv]

MAI LAI TRIAL

The trial was held to punish the U.S. army for the crimes committed in the village of Mai Lai in Vietnam. The U.S. conducted the trial itself to punish its own officers, contrary to the practice of the victorious state doing so[v].

INTERNATIONAL CRIMINAL TRIBUNAL FOR FORMER YUGOSLAVIA

The Security Council of United Nations formed the Commission of Experts on War in 1992. The commission reported forming a tribunal to prosecute the criminals. The tribunal demanded to form a statute the tribunal. There were procedures and ruled laid down in the statues. This was the first time the United Nations, came into the scene to handle the war crimes and set up a tribunal. The tribunal ceased to exist in 2017.

INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA

Rwanda saw grave genocide due to the civil war between the two ethnic groups Tutsi and Hutu, the country of Ruanda-Burundi that was once a united country divided into two countries of Rwanda and Burundi and in this there was a huge massacre. The United Nations tried hard to jump in and control the situation but nothing happened. Later the tribunal was formed to prosecute the war criminals for genocide and other war crimes on Tutsi.

SPECIAL COURT FOR SIERRA LEONE

The special court was set up by Sierra Leone and the United Nations to prosecute the war criminals in the civil war of Sienna Leone. There were serious violations of International Humanitarian Law and three major leaders were convicted for the offences.

MAJOR CONVENTIONS AND TREATIES

Charter of the International Military Tribunal, Nuremberg, of 8 August 1945

This charter was constituted by the Allied Powers to prosecute the war crimes in German and it led to the establishment of a tribunal to punish them.

Geneva Conventions of 12 August 1949

This is the most comprehensive convention which talks about the amelioration of the condition of wounded and sick in the time of armed conflict. The 1949 Geneva Conventions consequently did not use the term international “war crimes” and simply obligated State parties to “enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention[vi]

Rome Statute of the International Criminal Court,1998

Under this statute, a permanent International Criminal Court was established in Hague, Netherlands. It had the power and jurisdiction to punish international crimes of grave concern.

Universal Declaration of Human Rights

Article 5 of the Declaration says that no one shall be subjected to torture or to cruel inhumane or degrading treatment or punishment.

Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity

This convention says that there is no time limit for the prosecution of war crimes and it, therefore, there can be no period of limitation for prosecution and punishment.

CONCLUSION

The definition of war crimes cannot be exhaustive, there are various crimes that can be committed in the most brutal form and therefore fall under it. The Rome Statute tries to define war crimes to a greater extent. Still, there are a lot of war crimes that are taking place all over the world. The conventions come into force b the state parties which ratify it. The stated themselves should take more responsibility to punish the war criminals to prevent the basic, violations of the law of war.

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[i] War Crimes, Definition, United Nations available at https://www.un.org/en/genocideprevention/war-crimes.shtmllast seen on May 1, 2020.

[ii] L. OPPENHEIM, 2 INTERNATIONAL LAW: A TREATISE 263-70 (Longmans, Green & Co. 1906)

[iii]Nuremberg Trails, available at www.history.com

[iv] History.comeditors,” Japanese war crimes trial begins”, History, available at https://www.history.com/this-day-in-history/japanese-war-crimes-trial-begins, last seen on May 2, 2020.

[v] Dr H. O. Agarwal: A Concise book on International Law and Human Rights, Central Law Publications, Allahabad, 2nd Ed. (Rep) 2018

[vi] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 49, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31

References

1. Hathaway, Oona A., et al. "What Is a War Crime." Yale J. Int'l L. 44 (2019): 53.
2. ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT,1998
3. The Geneva Convention,1949
4. Frulli, Micaela. "Are crimes against humanity more serious than war crimes?." European Journal of International Law 12.2 (2001): 329-350.
5. Dr. H. O. Agarwal: A Concise book on International Law and Human Rights, Central Law Publications, Allahabad, 2nd Ed. (Rep) 2018.