This article has been written by Harshit Yadav pursuing a Diploma in US Corporate Law and Paralegal Studies course from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

We have a long history of wars and conflicts. The history of war goes way back to 1300 B.C. If we exclude the religious or so-called mythological wars of the Ramayana and Mahabharata, which go back millions of years. We have had continuous wars and conflicts since the Trojan War, and now the question arises as to why wars or conflicts happen. What is the reason? Some anthropologists who study wars and violence claim that “violence is embedded in our DNA” and that it is human behaviour, but some anthropologists think that war is a product of social and environmental factors rather than solely genetic inheritance.

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Well, this question is still unanswered. But it’s a sad truth that the world is continuously at war. According to a study, conflict took place every year of the 20th century; the world was free from the violence caused by war for only very short periods. It has been estimated that 187 million people died as a result of war from 1900 to the present. The actual number is likely far higher.

What are the different types of conflicts? Conflict is a state of disagreement or argument between two or more parties. It can arise due to opposing ideas, beliefs, values, or interests. Several types of conflicts exist, such as territorial conflict, economic conflict, ideological conflict, resource conflict, ethnic conflict, and religious and border conflicts. Conflicts bring violence with them, sometimes in the form of wars, terrorism, or separatist movements, but what is more sinister than wars are war crimes. By definition, war crime is, in international law, a serious violation of the laws or customs of war as defined by international customary law and international treaties. 

Types of war crimes

In Article 8 of its Elements of Crimes document, the ICC lists the different types of war crimes that are covered by the Rome Statute, including but not limited to the war crimes of:

  • Actions like wilful killing of soldiers and civilians, torture, mutilation, or inhumane treatment.
  • Any kind of biological, medical, or scientific experiment that causes death or seriously endangers the lives of soldiers or civilians.
  • Destruction and appropriation of property in the country.
  • Compelling service in hostile forces.
  • Denying a fair trial.
  • Sentencing or execution without trial.
  • Unlawful deportation, transfer, or confinement of people.
  • Taking hostages.
  • Attacking civilians or civilian properties.
  • Attacking people and property of humanitarian assistance or peacekeeping missions.
  • Improper use of a flag of truce or distinctive emblems of the Geneva Conventions.
  • Employing poison, prohibited gases, liquids, materials, or devices.
  • Rape, sexual slavery, or enforced prostitution.
  • The use of child soldiers.

Several common elements that are required to be present in addition to committing the above acts include:

  • The victim/s were protected under one or more of the Geneva Conventions of 1949
  • The perpetrator was aware of the factual circumstances that established that protected status
  • The conduct took place in the context of and was associated with an international armed conflict
  • The perpetrator was aware of factual circumstances that established the existence of an armed conflict
  • The document further expands on additional specific elements that need to be present per crime type.

Some case studies regarding war crimes

We will take some of the recent happenings of war crimes happening as of now.

Israel – Palestine conflict 

Israel – Palestine conflict is a decades-old struggle between Israel and Palestine. The conflict is one of the prime examples of resource and religious conflict. The roots of the conflict date back to the early 20th century, when the British controlled the region of Palestine after World War I. The British, through the Balfour Declaration, a letter by the British foreign minister, supported the establishment of a Jewish country in Palestine. This led to increased Jewish immigration to the region, which in turn led to tensions with the Arab population. In 1948, the British withdrew from Palestine, and the State of Israel was declared. This led to the first Arab–Israeli war, which resulted in Israel gaining control of much of the territory that had been designated for a Palestinian state. The war also resulted in hundreds of thousands of Palestinians being uprooted and forced into refugee camps. According to UN estimates, Israeli military attacks during the conflict in May claimed the lives of 260 Palestinians, including at least 129 citizens; 66 of them were minors. 1,948 Palestinians, including 610 children, were hurt by Israeli forces, according to the Gaza Health Ministry. According to Israeli officials, “several hundred” people were injured in rocket and mortar assaults carried out by Palestinian armed organisations, which also claimed the lives of 12 civilians, including two children and one soldier. In addition, several Palestinians perished in Gaza as a result of armed groups’ rockets falling short and landing there. There is news of rape and several other war crimes coming from the Gaza strip.

Russia – Ukraine War 

On February 24, 2022, Russia attacked Ukraine, causing chaos in the country. Several Russian battalions advanced in Ukraine. The history of Russia—the Russia-Ukraine war goes back. They have had a continuous tussle since then, whether it’s Soviet advancement in Ukraine or the Crimean War in 2014, a recent war that has continuously been going on since Feb 2022. Ukraine, the UN, and other countries like the USA and the EU continuously make allegations against Russia and Russian President Vladimir Putin for war crimes in Ukraine and Crimea. The war crimes allegations against the Russian armed forces include brutal execution of civilians and brutal rape of women and children, as well as denying humanitarian aid to Ukraine. The International Criminal Court [ICC] has been investigating war crimes and a crime against humanity in Ukraine carried out as far back as 2013 before Russia illegally annexed Crimea.
The International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin and Maria Lovova-Belova, Russia’s Commissioner for Children’s Rights, in March 2023. Russia is extremely unlikely to sign the ICC since it is not a signatory. So it is highly unlikely to extradite Putin and Ms. Maria.

Sudan Crisis

In April, the conflict erupted in Sudan’s capital, Khartoum. The unleashed ethnic violence in Darfur uprooted more than three million people and many fled to neighbouring countries.
Tensions started to rise between the Sudanese armed forces and the rapid support force after they jointly orchestrated a coup in October 2021. Many people are affected by the conflict, a mass outbreak of cholera is also seen in Sudan, extensive war crimes are seen in the conflict between Sudanese armed forces and the rapid support force; and a report documented mass casualties of civilians by the attacks of both forces, including details of sexual violence against women and girls, targeted attacks on civilian properties such as hospitals and churches and boundless looting. Some of the violations documented, such as attacks targeting civilians, attacks on humanitarian infrastructure, rape and other sexual violence, and pillage, amount to war crimes. The report focuses primarily on Khartoum and West Darfur.

Socio-economic impacts of war and war crimes

War and war crimes have serious impacts on the society and economy of countries engaged in war and conflict. When it comes to the economic impacts of war, war brings serious negative impacts on countries’ economies, including a shortage of funds, a rise in cost-push inflation, a decline in human population, a rise in debts, devastating infrastructure, etc.

More than the economic loss, the countries face a loss of society and peace within their territory. War crimes have a highly negative impact on society by increasing crimes of corruption. It is commonly seen that post-war there is a decline in death but a rapid increase in street crime and homicide. Crimes like domestic violence, trafficking, etc. increase with an increase in criminal nexus in the countries involving other international crimes and criminals. Crime against women rapidly increases. Women and children are often the prime victims of war crimes. Crimes like sexual slavery, forced prostitution bondage slavery are commonly documented during wartimes

Sexual violence as a weapon of war

We have often seen rape as a war strategy throughout the history of conflicts. Since the First World War, there has been a dramatic shift in casualties from military victims to civilian victims. In today’s conflicts, most victims are women and children due to the rise of total warfare, where no distinction is made between civilians and (armed) combatants. However, the exact number of victims of rape and other sexual violence during armed conflict is hard to determine. However, it is estimated that, in the Rwandan genocide of 1994 alone, between 250,000 and 500,000 women and girls were sexually assaulted by fighters. What is another well-known instance of mass rape during an armed conflict? It occurred during the 1992–1995 Bosnian War. Global awareness was raised for the so-called “rape camps,” where an estimated 20,000 to 50,000 women were routinely assaulted during the fighting. Rape has become a war strategy throughout the history of conflicts.

According to some experts, the same is done to desensitise and destabilise society, making the effect long-lasting because rape has a long-lasting effect on victims and society. It is done to break the morale of the population and intimidate them. Rape warfare is significantly used in almost every armed conflict after World War 2, where the Japanese imperial army raped more than 50000 women by calling them “comfort women” and the armed forces raped and tortured German women. From world wars to Russia and Ukraine, war rape is a weapon of war. Which comes under the category of a war crime and has a negative, long-lasting effect on society.

Legislation on war crimes

There are many laws and conventions formed on war crimes after World War 2. Some are discussed below:

Geneva Convention

The Geneva Conventions are a set of international accords enacted in Geneva between 1864 and 1949 to regulate the impact of war on troops and civilians. Two more protocols to the 1949 accord were added in 1977. The Geneva Conventions are regulations that only apply during times of armed conflict or war, and they aim to safeguard those who are not or no longer involved in battle. During times of war and armed conflict, the Geneva Conventions apply to states that have ratified them. Common Articles 2 and 3 specify the details of applicability.

The Hague Conventions

The Hague Conventions of 1899 and 1907 represent significant milestones in the development of international law, marking the first official codifications of wartime laws and war crimes in secular international law. These conventions, negotiated at two peace conferences held in The Hague, Netherlands, have had a profound impact on the regulation of armed conflicts and the protection of civilians and combatants alike.

The first Hague Conference, convened in 1899, was primarily concerned with addressing the humanitarian consequences of war. It resulted in the adoption of three key conventions: the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, the Convention Respecting the Laws and Customs of War on Land, and the Convention Concerning the Rights and Duties of Neutral Powers and Persons in Case of War on Land. These conventions established fundamental principles such as the prohibition of certain weapons and tactics, the protection of medical personnel and wounded soldiers, and the rights and obligations of neutral countries during wartime.

The second Hague Conference, held in 1907, built upon the achievements of the first conference and further expanded the scope of international law governing armed conflicts. It adopted thirteen conventions and one declaration, covering a wide range of issues, including the pacific settlement of international disputes, the rights and duties of neutral powers, and the laws and customs of naval warfare. Notably, the 1907 Hague Convention Respecting the Laws and Customs of War on Land remains one of the most comprehensive and influential treaties on the conduct of hostilities.

The Hague Conventions have had a lasting impact on the development of international humanitarian law and have served as a foundation for subsequent treaties and conventions. They have helped to establish norms and standards for the conduct of warfare, aimed at minimising suffering and protecting the rights of individuals and populations affected by armed conflicts.

While the outbreak of World War I in 1914 prevented the convening of a third Hague Conference, the legacy of the previous two conferences continued to shape the evolution of international law. The experiences of World War I and subsequent conflicts led to the adoption of additional treaties and conventions, such as the Geneva Conventions, which further elaborated on the protection of civilians, prisoners of war, and other vulnerable groups during wartime.

The Hague Conventions of 1899 and 1907 stand as testament to the efforts of the international community to regulate warfare and uphold the principles of humanity and justice.

International Humanitarian Law

International Humanitarian Law, commonly known as the laws of war, is a set of rules that govern the conduct of armed conflicts and protect the rights of individuals during times of war. These laws are aimed at minimising the suffering and harm caused by war and ensuring that those who carry out or participate in armed conflicts adhere to certain standards of behaviour. IHL is based on several key principles, including the distinction between combatants and non-combatants, the prohibition of certain methods of warfare, and the obligation to provide assistance and protection to those affected by armed conflict.

One of the fundamental principles of IHL is the distinction between combatants and non-combatants. Combatants are defined as individuals who are directly participating in hostilities, while non-combatants include civilians, medical personnel, and aid workers. This distinction is crucial, as it ensures that non-combatants are not targeted or harmed during armed conflicts.

Another important principle of IHL is the prohibition of certain methods of warfare. These include the use of chemical and biological weapons, indiscriminate attacks on civilian populations, and the use of torture and other forms of cruel, inhuman, or degrading treatment. These prohibitions are aimed at preventing unnecessary suffering and harm to individuals and communities.

IHL also imposes obligations on parties to armed conflicts to provide assistance and protection to those affected by the conflict. This includes providing medical care to the wounded and sick, ensuring access to food, water, and shelter for civilians, and protecting individuals from sexual violence and other forms of abuse.

The enforcement of IHL is carried out through a combination of mechanisms, including national and international courts, military tribunals, and international organisations. Violations of the IHL can result in individual criminal responsibility, including the prosecution of war crimes and crimes against humanity.

War Crimes Act

The Global Magnitsky Human Rights Accountability Act, also known as Senate Bill 4240, was passed by the United States Congress in 2020. This significant piece of legislation expanded the US government’s jurisdiction to prosecute individuals involved in war crimes, regardless of their nationality or where the crimes were committed.

The Act marked a major step forward in the fight against impunity for war criminals. It empowered the US government to freeze the assets of and deny visas to individuals credibly accused of committing war crimes, torture, or other gross human rights violations. This powerful tool allows the US to hold accountable those who perpetrate these heinous crimes, even if their own countries are unwilling or unable to do so.

The Global Magnitsky Act has already been used to target a number of war criminals and human rights abusers. In 2021, the US government imposed sanctions on several Russian officials and military personnel responsible for the torture and killing of civilians in Syria. The Act has also been used to target Chinese officials involved in the mass detention and persecution of Uyghur Muslims in Xinjiang province.

The Global Magnitsky Act is a powerful tool in the fight against impunity for war crimes and human rights abuses. It sends a clear message that the US will not tolerate these heinous crimes, and it provides a means to hold accountable those who perpetrate them.

Currently, the federal war crimes statute provides federal jurisdiction over war crime offences committed anywhere (i.e., inside or outside the United States) if the victim or offender is a member of the Armed Forces of the United States or a U.S. citizen.

International Criminal Court

The International Criminal Court (ICC) serves as a crucial institution in the global pursuit of justice. Established in 2002 by the Rome Statute, the ICC aims to address the most heinous crimes of international concern, which include genocide, war crimes, crimes against humanity, and the crime of aggression. The International Criminal Court (ICC) investigates, issues warrants, and prosecutes individuals charged with serious crimes of concern to the international community, such as genocide, war crimes, crimes against humanity, and aggression. As the highest appellate and final resort court, it attempts to supplement, not replace, national courts. It is governed by an international convention known as the Rome Statute. The Court operates on the principle of complementarity, recognising that national courts have the primary responsibility to investigate and prosecute international crimes. However, when national courts are genuinely unable or unwilling to do so, the ICC may intervene. This approach ensures that the ICC complements national efforts to ensure accountability, rather than replacing them.

The ICC’s mandate is particularly significant in addressing crimes that transcend national borders and affect the international community as a whole. For instance, the ICC has played a crucial role in investigating and prosecuting individuals responsible for war crimes committed during the Darfur conflict in Sudan and the Lord’s Resistance Army insurgency in Uganda. These cases demonstrate the ICC’s ability to hold perpetrators of serious crimes accountable, even when national courts are unable or unwilling to do so.

The ICC’s commitment to justice extends beyond issuing warrants and prosecuting individuals. The Court also works to ensure that victims of international crimes receive justice, redress, and reparations. Through its Victims and Witnesses Unit, the ICC provides support to victims, including psychological assistance, legal representation, and opportunities to participate in the proceedings.

Rome Statute

The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court (ICC). It was adopted at a diplomatic conference in Rome, Italy, on July 17, 1998, and enforced on July 1, 2002. As of November 2023, 124 states are parties to the statute. Among other things, it defines the court’s function, jurisdiction, and structure.

Case laws on war crimes

Abd-Al-Rahman Case

The case against Ali Kushayb, also known as Ali Muhammad Ali Abd-Al-Rahman, is currently ongoing at the International Criminal Court (ICC). He is suspected of committing 31 counts of war crimes and crimes against humanity in the Darfur region of Sudan between 2003 and 2004.

Al-Rahman is accused of being a senior commander in the Janjaweed militia, a Sudanese government-backed group responsible for widespread atrocities in Darfur. The charges against him include murder, rape, torture, and other inhumane acts.

The Darfur conflict began in 2003 when rebel groups took up arms against the Sudanese government. The government responded by unleashing the Janjaweed militia on the civilian population in Darfur. The conflict has resulted in the deaths of an estimated 300,000 people and the displacement of millions more.

Al-Rahman’s trial is a significant step in the pursuit of justice for the victims of the Darfur conflict. He is the first person to be tried by the ICC for crimes committed in Darfur. His trial is also a test of the ICC’s ability to hold perpetrators of serious crimes accountable.

The trial has been ongoing since 2015 and is expected to continue for several more months. Al-Rahman has pleaded not guilty to all charges. If convicted, he could face a sentence of life in prison.

The Darfur conflict is a complex issue with a long history. The trial of Ali Kushayb is an important step in addressing the legacy of the conflict and bringing justice to the victims. 

Al Mahdi Case

The Prosecutor vs. Ahmad Al Faqi Al Mahdi’s trial began on August 22, 2016, in Trial Chamber VIII of the International Criminal Court (ICC) in The Hague, Netherlands. Mr. Al Mahdi admitted responsibility for the war. crime involving the demolition of sacred and historical sites in Timbuktu, Mali, on around June 30, 2012, and July 11, 2012. This is the first international trial that centres on the demolition of historical and sacred sites, as well as the first case before the ICC in which the accused has acknowledged culpability. Found guilty and sentenced to 9 years of imprisonment.

Conclusion

Humans tend to have conflict. It may be due to nature, genetics, or a situation-based reaction to it. But what comes with conflicts are war crimes. Even in recent conflicts, we have witnessed war crimes, and they don’t end with the conflicts; they have their effect long after the conflicts by crippling the economy and increasing street crimes, permanently traumatising the population. War crimes left dents that never got filled. Society has been working towards reducing, controlling, or stopping war crimes since the 1800s by making conventions, legislation, and authorities. We have an international criminal court for bringing justice to victims and punishments to culprits. But is it working the way it was intended to?

References

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