Prosecuting War Crimes

The conviction of individuals for their involvement in the commision of international crimes is one way to strengthen compliance with IHL.

What are war crimes?

War crimes are serious violations of IHL that give rise to individual criminal responsibility.

Only serious violations of IHL may constitute war crimes - not all violations of IHL constitutes a criminal offense.

There must be a certain nexus to the conflict to not be a mere national judgement and it must be directy associated with the armed conflict in question. e.g.

In the Third Geneva Conventions, it is affirmed that POWs should have a canteen, where they may purchase food, soap, and tobacco at local market prices. If there was an unavailability of soap one day, it would breach IHL but certainly not constitute a war crime.

Grave breaches to the Geneva Conventions are to be seen as war crimes.

Rome Statute ICC, Article 8

The following paramaters constitute a war crime:

• Grave breaches of the Geneva Conventions

• Other serious violations of the laws and customs applicable in an IAC

• Serious violations of Common Article 3

• Other serious violations of the laws and customs applicable in a NIAC

Examples include: intentionally directing attacks at civilian populations, killing/ wounding combatants whom have surrendered, employing poison/ poison weapons, rape, conscripting children under the age of 15 into the armed forces.

Who can be convicted for war crimes?

IHL recognises various "modes of liability" --> persons who commit, order, solicit, induce, aid and abet or otherwise assist in the commission of a war crime may be convicted.

Military commanders and civilian superiors can be convicted of war crimes committed by their soldiers under certain circumstances, even if they did not commit the crime directly.

When and where can accused war criminals be prosecuted?

The individual state has a duty to investigate breaches of IHL in their territory. However, states have commonly been reluctant orunwilling or unable to prosecute their own nationals. Consequently, international criminal tribunals and courts have been established, in response to this general impunity on a domestic level.

Today, the most important criminal body for the enforcement of IHL is the International Criminal Court (ICC). It is the only permanent body with a comprehensive mandate and jurisdiction to try individuals for serious violations of IHL. However, the ICC can only operate in 2 main situations:

1. When states are party to their own statute, and the crimes have either happened on their territory or have been committed by their nationals. The state must also be unwilling and/or unable to prosecute themselves.

2. When the UNSC decides to refer a particular situation to the court under Chapter VII of the UN Charter. That is why the ICC cannot investigate alleged international crimes committed in the Syrian conflict for instance.

A crucial way to enforce IHL is by prosecuting, convicting, and punishing war criminals.