Business and International Crimes - Fafo/War Crimes II


Main page Project Description National Surveys: Argentina Australia Belgium Canada* France Germany India Indonesia Japan The Netherlands Norway* South Africa Spain Ukraine United Kingdom* United States Executive Summary International Crimes Category I: Crimes Against Humanity Category II: Forced Labor/Enslavement Category III: War Crimes Part I Category III: War Crimes Part II Category IV: Torture Category V: Genocide Bibliography Recent developments Links Fafo New Security Programme Feedback The contents and documents of this web site are intended for research purposes and do not constitute legal advice. Fafo and IPA are not responsible for the content of linked web sites	Business and International Crimes Category III: War Crimes II A-E in Category III: War Crimes I A. Overview B. Prosecutions for pillage plunder and related property crimes C. Overview of War Crimes D. Primary Sources of Law E. Cases Involving Economic Actors and War Crimes F-K in this document F. Grave Breaches G. Elements of the Grave Breaches H. Other Serious Violations Defined I. Elements of Other Serious Violations J. War Crimes: Protections Applicable to Internal Conflicts K. The Individualized Elements: War Crimes F. Grave Breaches The grave breaches were first defined in the four Geneva Conventions of 1949. Article 147 of Convention IV, the convention applying to civilians, adopted the broadest list of breaches. Individual criminal responsibility for committing a grave breach is considered settled as a matter of customary international law. Both the International Criminal Court and the International Criminal Tribunal for the Former Yugoslavia (ICTY) incorporated the grave breaches provisions into their statutes authorizing prosecution of war criminals. The grave breaches include: – Willful killing – Torture – Inhuman treatment – Biological experiments – Willfully causing great suffering – Destruction and appropriation of property – Compelling service in hostile forces – Denying a fair trial – Unlawful deportation and transfer – Unlawful confinement – Taking hostages 1. The Threshold Requirement The grave breaches provisions of the Geneva Convention apply only in the context of an international armed conflict. Occupation by a foreign force does qualify as an international armed conflict. In examining this threshold question, the ICTY held that “an armed conflict exists whenever there is a resort to armed force between States.” That tribunal further added that: “International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; … Until that moment, international humanitarian law continues to apply in the whole territory of the warring States . . . whether or not actual combat takes place there.” 2. Common Elements The Assembly of States Parties to the Rome Statue of the ICC adopted the Elements of the Crimes document articulating the elements to be proven for the individual grave breaches. There are four elements common to the all of the grave breaches: The victim(s) qualify as a protected person 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 mental requirements derive from Articles 30 (mental element) and 32 (mistake of fact and mistake of law) of the ICC statute. The fourth element does not require a legal evaluation by the perpetrator as to the existence of an armed conflict. It only requires awareness of the factual circumstances establishing the existence of the armed conflict. 3. Definition of Protected Persons and Property The definition of protected person varies among the four Geneva Conventions according to the scope of application for each. Article 4 of Geneva Convention IV, the convention applying to civilians, defines protected persons to include “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” The ICTY has extended the reach of protected persons to include civilians of the same legal nationality as the offending state where the offending state treats the civilians as non-nationals on the basis of their ethnicity, religion, etc. Protected property is property that is covered by the provisions of the Geneva Conventions, e.g., Geneva Convention IV lists, inter alia, Articles 18 (civilian hospitals), 33 (property belonging to protected persons), 53 (real or personal property belonging to private persons, the State, other public authorities, or to social or collective organizations). G. Elements of the Grave Breaches 1. War Crime of Willful Killing Note: According to the ICTY, “murder” and “willful killing” are synonymous and involve the same definitional elements. See Prosecutor v. Delalic et. al., Case No. IT-96-21-T, Judgment (the “Celebici Judgment”), Nov. 16, 1998. paras. 420-39. a) Sources of Law Geneva Convention IV, Articles 32 (murder),147 ICC Article 8(2)(a)(i) ICTY Article 2(a) Additionally, “murder” is a prohibition common to the Nuremberg Charters, see Control Council Law No. 10, Article II(b). b) The ICC Elements Article 8(2)(a) of the ICC Elements: The perpetrator killed, or caused the death of, one or more persons. c) Precedent discussing elements Criminal culpability requires an analysis of two aspects of the actus reus – the physical act necessary for the offence – and the mens rea, or the necessary mental element. In relation to homicide of all natures, this actus reus is clearly the death of the victim as a result of the actions or omissions of the accused. Furthermore, the conduct of the accused must be a substantial cause of the death of the victim. The necessary intent or mens rea, as “recognized in the Geneva Conventions, is present where there is demonstrated an intention on the part of the accused to kill, or inflict serious injury in reckless disregard of human life.” Prosecutor v. Delalic et. al., Case No. IT-96-21-T, Judgment, Nov. 16, 1998. paras. 420-39. 2. War Crime of Torture a) Sources of Law Geneva Convention IV, Articles 32, 147 ICC Article 8(2)(a)(ii) ICTY Article 2(b) b) The ICC Elements Article 8(2)(a)(ii)-1 of the ICC Elements: 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons; 2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining; information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind. Note: Unlike the crime against humanity, the war crime of torture does not include a custody or control requirement. c) Precedent discussing elements The ICTY, after identifying the Convention’s definition of torture as best representing customary international law and examining precedent from the European Court and the European Commission of Human Rights, identified four elements of torture for purpose of applying Articles 2 (grave breaches) and 3 of its authorizing statute: (i) There must be an act or omission that causes severe pain or suffering, whether mental or physical, (ii) which is inflicted intentionally, (iii) and for such purposes as obtaining information or a confession from the victim, or a third person, punishing the victim for an act he or she or a third person has committed or is suspected of having committed, intimidating or coercing the victim or a third person, or for any reason based on discrimination of any kind, (iv) and such act or omission being committed by, or at the instigation of, or with the consent or acquiescence of, an official or other person acting in an official capacity. Prosecutor v. Delalic et. al., Case No. IT-96-21-T, Judgment, Nov. 16, 1998. paras. 494. 3. War Crime of Inhumane Treatment a) Sources of Law Geneva Convention IV, Articles 119, 147. ICC Article 8(2)(a)(ii) ICTY Article 2(b) b) The ICC Elements Article 8(2)(ii)-2 of the ICC Elements: The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. c) Precedent discussing elements After extensive discussion of the Geneva Conventions and commentaries, the ICTY held that “inhuman treatment is an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.” The question is one of fact and circumstance to be determined on a case-by-case basis. The tribunal noted that the prohibition against inhumane treatment was similar to that of torture and willfully causing great suffering, yet broader in scope. The tribunal further noted that, within the context of the Geneva Conventions, “inhuman treatment is intentional treatment which does not conform with the fundamental principle of humanity, and forms the umbrella under which the remainder of the listed ‘grave breaches’ in the Conventions fall.” Hence, any act characterized in the Conventions as inhuman, or inconsistent with the principle of humanity, serve as examples of inhuman treatment. Prosecutor v. Delalic et. al., Case No. IT-96-21-T, Judgment, Nov. 16, 1998. paras. 543-44. 4. War Crime of Biological Experiments a) Sources of Law Geneva Convention IV, Articles 147 ICC Article 8(2)(a)(ii) ICTY Article 2(b) b) The ICC Elements Article 8(2)(a)(ii)-3 of the ICC Elements: 1. The perpetrator subjected one or more persons to a particular biological experiment. 2. The experiment seriously endangered the physical or mental health or integrity of such person or persons. 3. The intent of the experiment was non-therapeutic and it was neither justified by medical reasons nor carried out in such person or persons’ interest. c) Precedent discussing elements The Commentary to Geneva Convention IV notes the prohibition against biological experiments is not a prohibition denying the use of new methods of treatment justified by medical reasons. The prohibition is intended to prevent biological experiments that cause injury to body or health performed with no intention of improving the health of the patient. See Jean S. Pictet, Commentary, IV Geneva Convention Relative to the Protection of Civilian Persons in the Time of War 598 (1958) 5. War Crime of Willfully causing great suffering a) Sources of Law Geneva Convention IV, Article 147 ICC Article 8(2)(a)(iii) ICTY Article 2(c) b) The ICC Elements Article 8(2)(a)(iii) of the ICC Elements: The perpetrator caused great physical or mental pain or suffering to, or serious injury to body or health of, one or more persons. c) Precedent discussing elements The ICTY held that “the offence of willfully causing great suffering or serious injury to body or health constitutes an act or omission that is intentional, being an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury.” The tribunal also noted that the offense “covers those acts that do not meet the purposive requirements for the offence of torture, although clearly all acts constituting torture could also fall within the ambit of this offence.” Prosecutor v. Delalic et. al., Case No. IT-96-21-T, Judgment, Nov. 16, 1998. paras. 511. 6. War Crime of Destruction and appropriation of property a) Sources of Law Geneva Convention IV, Article 33 (pillage), 53 (prohibited destruction), 147 ICC Article 8(2)(a)(iv) ICTY Article 2(d) Additionally, the Nuremberg charters contain similar prohibitions. For example, Article 6(b) of the IMT Charter includes both and “plunder of public or private property” and “the wanton destruction of cities, towns or villages or devastation not justified by military necessity” in its illustrative list of violations of the laws and customs or war. b) The ICC Elements Article 8(2)(a)(iv) of the ICC Elements: 1. The perpetrator destroyed or appropriated certain property. 2. The destruction or appropriation was not justified by military necessity. 3. The destruction or appropriation was extensive and carried out wantonly. c) Precedent discussing elements The Commentary to Geneva Convention IV states that the prohibition against destruction and appropriation of property covers a number of different offenses. The protection extends to any property protected by the Geneva Conventions. Article 53 protects real or personal property from being destroyed unless the destruction is required by military necessity. However, the also states that the protections of Articles 53 and 147 Convention apply only to occupied, as opposed to enemy, territory. Article 33 of the Convention covers pillage, both individualized pillage and systematic. Yet, according to the commentary, to constitute a grave breach under Article 147, the appropriation may not be an isolated incident, the pillage must be extensive. See Jean S. Pictet, Commentary, IV Geneva Convention Relative to the Protection of Civilian Persons in the Time of War 601 (1958). The ICTY, interpreting the Commentary on the Geneva Convention, held that to “constitute a grave breach, the destruction unjustified by military necessity must be extensive, unlawful and wanton.” The tribunal further noted that “extensive” should be “evaluated according to the facts of the case – a single act, such as the destruction of a hospital, may suffice to characterize an offence under this count.” Prosecutor v. Blaskic, Case No. IT-95-14, Judgment March, 3 2000. para. 157. 7. War Crime of Compelling service in hostile forces a) Sources of Law Hague Convention IV, Article 23 Geneva Convention IV, Article 147 ICC Article 8(2)(a)(v) ICTY Article 2(e) b) The ICC Elements Article 8(2)(a)(v) of the ICC Elements: The perpetrator coerced one or more persons, by act or threat, to take part in military operations against that person’s own country or forces or otherwise serve in the forces of a hostile power. c) Precedent discussing elements Not applicable. 8. War Crime of Denying a fair trial a) Sources of Law Geneva Convention IV, Articles 64-75, 147 ICC Article 8(2)(a)(vi) ICTY Article 2(f) b) The ICC Elements Article 8(2)(a)(vi) of the ICC Elements: The perpetrator deprived one or more persons of a fair and regular trial by denying judicial guarantees as defined, in particular, in the third and the fourth Geneva Conventions of 1949. c) Precedent discussing elements In Articles 64-75, the Convention establishes a number of conditions under which protected persons must be tried in court. The Commentary on the Geneva Conventions notes that denial of these conditions can constitute a denial of a fair trial. See Jean S. Pictet, Commentary, IV Geneva Convention Relative to the Protection of Civilian Persons in the Time of War 600 (1958). 9. War Crime of Unlawful deportation and transfer a) Sources of Law Geneva Convention IV, Articles 45, 49, 147 ICC Article 8(2)(a)(vii) ICTY Article 2(g) b) The ICC Elements Article 8(2)(s)(vii) of ICC Elements: The perpetrator deported or transferred one or more persons to another State or to another location. c) Precedent discussing elements7 The Commentary to Geneva Convention IV notes that, with respect to breaches of Articles 45 (Transfer to another power), and 49 (Deportations, transfers, evacuations), “transfers are forbidden except in cases where the safety of the protected persons may make them absolutely necessary.” See Jean S. Pictet, Commentary, IV Geneva Convention Relative to the Protection of Civilian Persons in the Time of War 599 (1958). 10. War Crime of Unlawful confinement a) Sources of Law Geneva Convention IV, Articles 41-43, 78, 147 ICC Article 8(2)(a)(vii) ICTY Article 2(g) b) The ICC Elements Article 8(2)(a)(vii) of the ICC Elements: The perpetrator confined or continued to confine one or more persons to a certain location. c) Precedent Discussing the Elements The ICTY noted that unlawful confinement requires inquiry into: 1) the legality of confinement; and, 2) the procedural safeguards in place to guarantee that legality. After considerable examination of Convention IV and its preparatory documents, the tribunal held that “the confinement of civilians during armed conflict may be permissible in limited cases, but has in any event to be in compliance with the provisions of articles 42 and 43 of Geneva Convention IV. The security of the State concerned might require the internment of civilians and, furthermore, the decision of whether a civilian constitutes a threat to the security of the State is largely left to its discretion [Article 24]. However, it must be borne in mind that the measure of internment for reasons of security is an exceptional one and can never be taken on a collective basis. An initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in article 43 of Geneva Convention IV.” Prosecutor v. Delalic et. al., Case No. IT-96-21-T, Judgment, Nov. 16, 1998. paras. 563-83. 11. War Crime of Taking hostages a) Sources of Law Geneva Convention IV, Articles 41-43, 78, 147 ICC Article 8(2)(a)(viii) ICTY Article 2(h) b) The ICC Elements Article 8(2)(a)(viii) of the ICC Elements: 1. The perpetrator seized, detained or otherwise held hostage one or more persons. 2. The perpetrator threatened to kill, injure or continue to detain such person or persons. 3. The perpetrator intended to compel a State, an international organization, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons. c) Precedent discussing the elements The ICTY has defined “civilian hostages are persons unlawfully deprived of their freedom, often arbitrarily and sometimes under threat of death.” The tribunal held that 1) the detention must be unlawful, and 2) “at the time of the supposed detention, the allegedly censurable act was perpetrated in order to obtain a concession or gain an advantage.” An example of a lawful detention would be detention intended to protect the targeted civilians. Prosecutor v. Blaskic, Case No. IT-95-14, Judgment March, 3 2000. para. 158. H. Other Serious Violations Defined The other serious violations provisions listed in Article 8(2)(b) of the ICC Statute derive from the Hague Regulations of 1907 and Additional Protocol I to the 1949 Geneva Conventions. Additional Protocol I does not carry the same customary weight as the grave braches of Geneva Convention IV However, those provisions deriving from the Hague Regulations are considered well-established in customary international law. – Attacking civilians – Attacking civilian objects – Attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission* – Excessive incidental death, injury, or damage – Attacking undefended places – Killing or wounding a person hors de combat – Improper use of a flag of truce – Improper use of a flag, insignia or uniform of the hostile party – Improper use of a flag, insignia or uniform of the United Nations – Improper use of the distinctive emblems of the Geneva Conventions – The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory – Attacking protected objects – Mutilation – Medical or scientific experiments – Treacherously killing or wounding – Denying quarter – Destroying or seizing the enemy’s property – Depriving the nationals of the hostile power of rights or actions – Compelling participation in military operations – Pillaging – Employing poison or poisoned weapons – Employing prohibited gases, liquids, materials or devices – Employing prohibited bullets – Employing weapons, projectiles or materials or methods of warfare listed in the Annex to the Statute – Outrages upon personal dignity – Rape – Sexual slavery – Enforced prostitution – Forced pregnancy – Enforced sterilization – Sexual violence – Using protected persons as shields – Attacking objects or persons using the distinctive emblems of the Geneva Conventions – Starvation as a method of warfare – Using, conscripting or enlisting children 1. The Threshold Element The serious violations prohibitions listed above apply only in the context of an international armed conflict. However, military occupation does qualify as an international armed conflict. The violation must have occurred in connection with the armed conflict. The grave breaches provisions of the Geneva Convention apply only in the context of an international armed conflict. Military occupation does qualify as an international armed conflict. 2. Common Elements According to the ICC Elements of the Crimes, the perpetrator of the serious violation must have been aware of factual circumstances that established the existence of an armed conflict. This does not require a legal determination about the existence of a conflict, just awareness of the facts. I. Elements of Other Serious Violations 1. War Crime of Attacking civilians a) Sources of Law Additional Protocol I, Articles 85(3)(a) & 49, 50, 51, 57 (Making the civilian population or individual civilians the object of attack) ICC Statute 8(2)(b)(i) (Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities) b) ICC Elements Article 8(2)(b)(i) of the ICC Elements: 1. The perpetrator directed an attack. 2. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities. 3. The perpetrator intended the civilian population as such, or individual civilians not taking direct part in hostilities, to be the objects of the attack. c) Precedent discussing the elements This offence involves an act of violence against the adversary, committed willfully and either in offence or defense, and resulting in death or serious injury to body and health. See Jean Pictet, Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 995 (1987). 2. War Crime of Attacking Civilians a) Sources of Law Additional Protocol I, Articles 85(3)(b) & 49, 50, 51, 52, 57 (Launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects) ICC Statute 8(2)(b)(ii) (Intentionally directing attacks against civilian objects, that is, objects which are not military objectives) b) ICC Elements Article 8(2)(b)(ii) of the ICC Elements: 1. The perpetrator directed an attack. 2. The object of the attack was civilian objects, that is, objects that are not military objectives. 3. The perpetrator intended such civilian objects to be the object of the attack. c) Precedent discussing elements This offence involves an indiscriminate attack willfully launched in the knowledge that its consequences will be excessive in relation to the concrete and direct military advantage anticipated. See Jean Pictet, Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 995-96 (1987). 3. War Crime of Excessive incidental death, injury, or damage a) Sources of Law Additional Protocol I, Articles 85(3)(d) & 59, 60 (Launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects) ICC Statute 8(2)(b)(iv) (Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated) b) ICC Elements Article 8(2)(b)(iv) of the ICC Elements: 1. The perpetrator launched an attack. 2. The attack was such that it would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated. 3. The perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated. c) Precedent discussing elements This offence involves an attack willfully directed against a non-defended locality or demilitarized zone where the attacker is aware of the protected area’s status and the attack causes death or serious injury to body or health. See Jean Pictet, Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 997 (1987). “Concrete and direct overall military advantage” refers to a military advantage that is foreseeable by the perpetrator at the relevant time. Such advantage may or may not be temporally or geographically related to the object of the attack. The fact that this crime admits the possibility of lawful incidental injury and collateral damage does not in any way justify any violation of the law applicable in armed conflict. It does not address justifications for war or other rules related to jus ad bellum. It reflects the proportionality requirement inherent in determining the legality of any military activity undertaken in the context of an armed conflict. Furthermore, the knowledge element requires that the perpetrator make the value judgment as described in element three. An evaluation of that value judgment must be based on the requisite information available to the perpetrator at the time. 4. War Crime of Attacking undefended places a) Sources of Law Hague Regulations, Article 25 (The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited) Additional Protocol I, Articles 85(3)(d) & 49, 50, 51, 52, 56, 57 (Making non-defended localities and demilitarized zones the object of attack) ICC Statute 8(2)(b)(v) (Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives) b) ICC Elements Article 8(2)(b)(v) of the ICC Elements: 1. The perpetrator attacked one or more towns, villages, dwellings or buildings. 2. Such towns, villages, dwellings or buildings were open for unresisted occupation. 3. Such towns, villages, dwellings or buildings did not constitute military objectives. c) Precedent discussing elements This offence involves an attack willfully launched against military works or installations with knowledge that the excessive loss of life or injury to civilians would be excessive in proportion to the military advantage anticipated. See Jean Pictet, Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 996-97 (1987). 5. War Crime of Killing or wounding a person hors de combat a) Sources of Law Additional Protocol I, Articles 85(3)(e) & 41 (Making a person the object of attack in the knowledge that he is hors de combat) ICC Statute 8(2)(b)(vi) (Killing or wounding a combatant who, having laid down his arms or having no longer means of defense, has surrendered at discretion) b) ICC Elements Article 8(2)(b)(vi) of the ICC Elements: 1. The perpetrator killed or injured one or more persons. 2. Such person or persons were hors de combat. 3. The perpetrator was aware of the factual circumstances that established this status. c) Precedent discussing elements This offense involves a willful attacks upon a person known to be hors de combat, resulting in death or serious injury to that person’s body or health. See Jean Pictet, Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 998 (1987). 6. Improper use of flags and symbols a) Sources of Law Hague Regulations Article 23(f) (It is especially forbidden … To make improper use of a flag of truce, of the national flag or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention Additional Protocol I, Articles 85(3)(f) & 37, 38 (The perfidious use, in violation of Article 37, of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective signs recognized by the Conventions or this Protocol) ICC Statute 8(2)(b)(vii) (Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury) b) ICC Elements Articles 8(b)(vii)-1, through –5 of the ICC Elements: Improper use of a flag of truce 1. The perpetrator used a flag of truce. 2. The perpetrator made such use in order to feign an intention to negotiate when there was no such intention on the part of the perpetrator. 3. The perpetrator knew or should have known of the prohibited nature of such use. 4. The conduct resulted in death or serious personal injury. 5. The perpetrator knew that the conduct could result in death or serious personal injury. Improper use of a flag, insignia or uniform of the hostile party 1. The perpetrator used a flag, insignia or uniform of the hostile party. 2. The perpetrator made such use in a manner prohibited under the international law of armed conflict while engaged in an attack. 3. The perpetrator knew or should have known of the prohibited nature of such use. 4. The conduct resulted in death or serious personal injury. 5. The perpetrator knew that the conduct could result in death or serious personal injury. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Improper use of a flag, insignia or uniform of the United Nations 1. The perpetrator used a flag, insignia or uniform of the United Nations. 2. The perpetrator made such use in a manner prohibited under the international law of armed conflict. 3. The perpetrator knew of the prohibited nature of such use. 4. The conduct resulted in death or serious personal injury. 5. The perpetrator knew that the conduct could result in death or serious personal injury. Improper use of the distinctive emblems of the Geneva Conventions 1. The perpetrator used the distinctive emblems of the Geneva Conventions. 2. The perpetrator made such use for combatant purposes in a manner prohibited under the international law of armed conflict. 3. The perpetrator knew or should have known of the prohibited nature of such use. 4. The conduct resulted in death or serious personal injury. 5. The perpetrator knew that the conduct could result in death or serious personal injury. “Combatant purposes” in the context of this violation requires direct relation to hostilities. Medical, religious, or similar activities, do not qualify. Case Law: THIS OFFENSE WAS ALLEGED IN AN ATCA CASE, REFIND IT !!! c) Precedent discussing elements This offense involves the perfidious use of emblems, signs or signals provided for by the Geneva Conventions or the Protocol, for the purpose of killing, injuring or capturing an adversary and resulting in death or serious injury to body or health. See Jean Pictet, Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 999 (1987). 7. War Crime of transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory a) Sources of Law Additional Protocol I, Articles 85(4)(a) & Geneva Convention IV, Article 49 (The transfer by the occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, in violation of Article 49 of the Fourth Convention) ·ICC Statute 8(2)(b)(viii) (The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory) b) ICC Elements Article 8(2)(b)(viii) of the ICC Elements: The perpetrator: (a) Transferred, directly or indirectly, parts of its own population into the territory it occupies; or (b) Deported or transferred all or parts of the population of the occupied territory within or outside this territory. “Transferred” should be interpreted in accordance with the relevant provisions of international humanitarian law. c) Precedent discussing the elements Transfer or deportation of the population of the occupied territory is also considered a grave breach under Article 147 of Geneva Convention IV. The new element added here concerns the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies: this practice, which was a breach, is now a grave breach because of the possible consequences for the population of the territory concerned from a humanitarian point of view. See Jean Pictet, Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1000 (1987). 8. War Crime of Attacking protected objects a) Sources of Law Hague Regulations Article 27 (In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes) Hague Regulations Article 56 (All seizure of, destruction or willful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings) Additional Protocol I Articles 85(4)(d) & 53 (Making the clearly-recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, for example, within the framework of a competent international organization, the object of attack, causing as a result extensive destruction thereof, where there is no evidence of the violation by the adverse Party of Article 53, subparagraph (b), and when such historic monuments, works of art and places of worship are not located in the immediate proximity of military objectives) ICC Statute 8(2)(b)(ix) (Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives) b) The ICC Elements Article 8(2)(b)(ix) of the ICC Elements: 1. The perpetrator directed an attack. 2. The object of the attack was one or more buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives. 3. The perpetrator intended such building or buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives, to be the object of the attack. c) Precedent discussing the elements This offense involves a willful attack against protected objects and causing extensive destruction of those objects. Objects lose their protection if used in support of the military effort or located in the immediate vicinity of military objectives. See Jean Pictet, Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1002 (1987). 9. War crime of Mutilation & Medical or Scientific Experiments a) Sources of Law Additional Protocol I Article 11 (The physical or mental health and integrity of persons who are in the power of the adverse Party or who are interned, detained or otherwise deprived of liberty as a result of a situation referred to in Article 1 shall not be endangered by any unjustified act or omission. Accordingly, it is prohibited to subject the persons described in this Article to any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the Party conducting the procedure and who are in no way deprived of liberty. It is, in particular, prohibited to carry out on such persons, even with their consent: (a) physical mutilations; (b) medical or scientific experiments; (c) removal of tissue or organs for transplantation) Additional Protocol I, Article 75(2) (The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents … violence to the life, health, or physical or mental well-being of persons, in particular: (iv) mutilation) ICC Statute 8(2)(b)(x) (Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons) b) The ICC Elements Article 8(2)(b)(x)-1, and -2 of the ICC Elements: Mutilation 1. The perpetrator subjected one or more persons to mutilation, in particular by permanently disfiguring the person or persons, or by permanently disabling or removing an organ or appendage. 2. The conduct caused death or seriously endangered the physical or mental health of such person or persons. 3. The conduct was neither justified by the medical, dental or hospital treatment of the person or persons concerned nor carried out in such person’s or persons interest. 4. Such person or persons were in the power of an adverse party. Consent is not a valid defense to this crime. The crime prohibits any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of liberty. Medical or scientific experiments 1. The perpetrator subjected one or more persons to a medical or scientific experiment. 2. The experiment caused death or seriously endangered the physical or mental health or integrity of such person or persons. 3. The conduct was neither justified by the medical, dental or hospital treatment of such person or persons concerned nor carried out in such person’s or persons’ interest. 4. Such person or persons were in the power of an adverse party. Consent is not a valid defense to this crime. The crime prohibits any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of liberty. 10. War Crime of Treacherously killing or wounding a) Sources of Law Hague Regulations, Article 23(b) (It is especially forbidden… To kill or wound treacherously individuals belonging to the hostile nation or army) ICC Statute 8(2)(b)(xi) (Killing or wounding treacherously individuals belonging to the hostile nation or army) b) The ICC Elements Article 8(2)(b)(xi) of the ICC Elements: 1. The perpetrator invited the confidence or belief of one or more persons that they were entitled to, or were obliged to accord, protection under rules of international law applicable in armed conflict. 2. The perpetrator intended to betray that confidence or belief. 3. The perpetrator killed or injured such person or persons. 4. The perpetrator made use of that confidence or belief in killing or injuring such person or persons. 5. Such person or persons belonged to an adverse party. 11. War Crime of Denying quarter a) Sources of Law Hague Regulations, Article 23(d) (It is especially forbidden… To declare that no quarter will be given) ICC Statute 8(2)(b)(xii) (Declaring that no quarter will be given) b) The ICC Elements Article 8(2)(b)(xii) of the ICC Elements: 1. The perpetrator declared or ordered that there shall be no survivors. 2. Such declaration or order was given in order to threaten an adversary or to conduct hostilities on the basis that there shall be no survivors. 3. The perpetrator was in a position of effective command or control over the subordinate forces to which the declaration or order was directed. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. 12. War Crime of Destroying or seizing the enemy’s property a) Sources of Law Hague Regulations, Article 23(g) (It is especially forbidden… To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war) ICC Statute 8(2)(b)(xiii) (Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war) b) The ICC Elements Article 8(2)(b)(xiii) of the ICC Elements: 1. The perpetrator destroyed or seized certain property. 2. Such property was property of a hostile party. 3. Such property was protected from that destruction or seizure under the international law of armed conflict. 4. The perpetrator was aware of the factual circumstances that established the status of the property. 5. The destruction or seizure was not justified by military necessity. 13. War Crime of Compelling participation in military operations a) Sources of Law Hague Regulations, Article 23(g) (A belligerent is likewise forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war) ICC Statute 8(2)(b)(xv) (Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war) b) The ICC Elements Article 8(2)(b)(xv) of the ICC Elements: 1. The perpetrator coerced one or more persons by act or threat to take part in military operations against that person’s own country or forces. 2. Such person or persons were nationals of a hostile party. 14. War Crime of Pillaging (Pillage) a) Sources of Law Hague Regulations, Article 28 (The pillage of a town or place, even when taken by assault, is prohibited) Hague Regulations, Article 47 (Pillage is formally forbidden) Geneva Convention IV Article 33 (Pillage is prohibited) ICC Statute 8(2)(b)(xvi) (Pillaging a town or place, even when taken by assault) b) The ICC Elements Article 8(2)(b)(xvi) of the ICC Elements: 1. The perpetrator appropriated certain property. 2. The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use. 3. The appropriation was without the consent of the owner. “Private or personal use” disqualifies appropriations justified by military necessity from the crime of pillaging. 15. War Crime of Employing poison or poisoned weapons a) Sources of Law Hague Regulations Article 23 (To employ poison or poisoned weapons) ICC Statute 8(2)(b)(xvii) (Employing poison or poisoned weapons) b) The ICC Elements Article 8(2)(b)(xvii) of the Elements: 1. The perpetrator employed a substance or a weapon that releases a substance as a result of its employment. 2. The substance was such that it causes death or serious damage to health in the ordinary course of events, through its toxic properties. 16. War Crime of Employing prohibited gases, liquids, materials or devices a) Sources of Law Hague Declaration on Asphyxiating Gases of 1899 (The Contracting Powers agree to abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases) Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. Geneva, 17 June 1925. Whereas the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids materials or devices, has been justly condemned by the general opinion of the civilized world; and Whereas the prohibition of such use has been declared in Treaties to which the majority of Powers of the world are Parties; and To the end that this prohibition shall be universally accepted as a part of International Law, binding alike the conscience and the practice of nations Declare: That the High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration ICC Statute 8(2)(b)(xviii) (Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices) b) The ICC Elements Article 8(2)(b)(xviii) of the ICC Elements: 1. The perpetrator employed a gas or other analogous substance or device. 2. The gas, substance or device was such that it causes death or serious damage to health in the ordinary course of events, through its asphyxiating or toxic properties. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. 17. War Crime of Employing prohibited bullets a) Sources of Law Hague Declaration Expanding Bullets of 1899 (The Contracting Parties agree to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions) ICC Statute 8(2)(b)(xix) (Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incision) b) The ICC Elements Article 8(2)(b)(xix) of the ICC Elements: 1. The perpetrator employed certain bullets. 2. The bullets were such that their use violates the international law of armed conflict because they expand or flatten easily in the human body. 3. The perpetrator was aware that the nature of the bullets was such that their employment would uselessly aggravate suffering or the wounding effect. 18. War Crime of Employing weapons, projectiles or materials or methods of warfare listed in the Annex to the Statute a) Sources of Law Hague Regulations Article 23(e ) (It is especially forbidden … To employ arms, projectiles, or material calculated to cause unnecessary suffering) ICC Statute 8(2)(b)(xx) (Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123) b) ICC Elements [Elements will have to be drafted once weapons, projectiles or material or methods of warfare have been included in an annex to the Statute.] 17. War Crime of Outrages upon personal dignity a) Sources of Law Geneva Convention IV, Article 3(c) (To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever … outrages upon personal dignity, in particular humiliating and degrading treatment) Additional Protocol I, Article 75 (The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents …outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault) ICC Statute 8(2)(b)(xxi) (Committing outrages upon personal dignity, in particular humiliating and degrading treatment) b) The ICC Elements Article 8(2)(b)(xxi) of the Elements: 1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons. 2. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity. For this crime, “persons” can include dead persons. It is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation. This element takes into account relevant aspects of the cultural background of the victim. 18. War Crimes of Rape, sexual slavery, enforced prostitution, forced pregnancy a) Sources of Law Additional Protocol I, Article 27 (Women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault) Additional Protocol I, Article 75 (The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents …outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault) ICC Statute 8(2)(b)(xxii) (Committing rape, sexual slavery, enforced prostitution, forced pregnancy, … enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions) Article 7(2)(f) (“Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy) b) The ICC Elements Article 8(2)(b)(xxii)-1 to -6 of the ICC Elements: Rape 1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. 2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent. Note: The concept of “invasion” is intended to be broad enough to be gender-neutral. It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity. Sexual slavery 1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. 2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature. Note: Given the complex nature of this crime, it is recognized that its commission could involve more than one perpetrator as a part of a common criminal purpose. It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labor or otherwise reducing a person to servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children. Enforced prostitution 1. The perpetrator caused one or more persons to engage in one or more acts of asexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature. Forced pregnancy 1. The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. Sexual violence 1. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. The conduct was of a gravity comparable to that of a grave breach of the Geneva Conventions. 3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct. 19. War Crime of Using protected persons as shields a) Sources of Law Geneva Convention IV Article 28 (The presence of a protected person may not be used to render certain points or areas immune from military operations) Additional Protocol I, Article 51(7) (The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations) ICC Statute 8(2)(b)(xxiii) (Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations) b) The ICC Elements Article 8(2)(b)(xxiii) of the ICC Elements: 1. The perpetrator moved or otherwise took advantage of the location of one or more civilians or other persons protected under the international law of armed conflict. 2. The perpetrator intended to shield a military objective from attack or shield, favor or impede military operations. 20. War Crime of Attacking objects or persons using the distinctive emblems of the Geneva Conventions a) Sources of Law ICC Statute 8(2)(b)(xxiv) (Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law) b) The ICC Elements Article 8(2)(b)(xxiv) 1. The perpetrator attacked one or more persons, buildings, medical units or transports or other objects using, in conformity with international law, a distinctive emblem or other method of identification indicating protection under the Geneva Conventions. 2. The perpetrator intended such persons, buildings, units or transports or other objects so using such identification to be the object of the attack. 21. War Crime of Starvation as a method of warfare a) Sources of Law Additional Protocol I, Article 54 (Starvation of civilians as a method of warfare is prohibited) ICC Statute 8(2)(b)(xxv) (Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive) b) The ICC Elements Article 8(2)(b)(xxv) of the ICC Elements: 1. The perpetrator deprived civilians of objects indispensable to their survival. 2. The perpetrator intended to starve civilians as a method of warfare. 22. War Crime of Using, conscripting or enlisting children a) Sources of Law Additional Protocol I, Article 77 (The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavor to give priority to those who are oldest) ICC Statute 8(2)(b)(xxvi) (Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities) b) The ICC Elements Article 8(2)(b)(xxvi) of the ICC Elements: 1. The perpetrator conscripted or enlisted one or more persons into the national armed forces or used one or more persons to participate actively in hostilities. 2. Such person or persons were under the age of 15 years. 3. The perpetrator knew or should have known that such person or persons were under the age of 15 years. J. War Crimes: Protections Applicable to Internal Conflicts 3.3.C. PRIMARY SOURCES OF LAW The two primary sources of law providing protections to civilians during the context of an internal armed conflict are Article 3 common to the Geneva Conventions of 1949 and Protocol II Additional to the Geneva Conventions of 1949. Protections based on these sources have been codified into the statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and International Criminal Court (ICC), as well as in the International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind of 1996 (ILC Draft Code). The war crimes applicable to internal armed conflicts as categorized by their primary source of authority: I. Common Article 3 Murder, Mutilation, Cruel treatment, Torture Outrages upon personal dignity Taking hostages Sentencing or execution without due processFailing to collect and care for the wounded and sickII. Additional Protocol IICollective Punishment Acts of TerrorismSlaveryThreatening to commit a war crimeStarvation as method of combatHostility directed against historic monuments, works of art, or places of worship Attacks against dangerous forces, namely dams, dykes, and nuclear electrical generating stations III. ICC Art 8(2)(e)Attacking civilians (art 13)Attacking objects or persons using the distinctive emblems of the Geneva ConventionsAttacking personnel or objects involved in a humanitarian assistance or peacekeeping missionAttacking protected objectsPillagingRape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, sexual violenceUsing, conscripting and enlisting children* Displacing civilians* (art 17)Treacherously killing or woundingDenying quarterPhysical mutilation, medical or scientific Experimentation Destroying or seizing the enemy’s property * Derives from Additional Protocol II 1. Background Traditionally, the laws and customs of war did not apply to non-international armed conflicts or situations of internal violence. Common Article 3 was the first statement of minimal standards to be applied in armed conflicts not of an international character. The Geneva Conventions do not characterize violations of common Article 3 as grave breaches. Thus, it was uncertain whether individual criminal responsibility arose under such violations. However, the International Court of Justice and the ICTY have since characterized the protections of common Article 3 as “elementary considerations of humanity,” violations of which produce individual criminal responsibility as a matter of customary international law. Additional Protocol II developed and supplemented the list of protections applicable to conflicts not of an international character. However, the protocol does not assign individual criminal responsibility to violations of its provisions. Thus, individual responsibility for a violation of the Protocol would turn on the customary nature of the particular provision violated. The customary status of those provisions supplementing of common Article 3 is more uncertain than that of those deeply rooted in common Article 3. In fact, inclusion of the additional protections in the ICC statute was very controversial. The fundamental guarantees listed in Article 4 of Protocol II are thought to be more widely accepted than those listed elsewhere in the protocol. 2. Developments in Common Article 3 and Additional Protocol II ICTY: The ICTY Statute does not make explicit reference to either common Article 3 or Additional Protocol II. However, the Tribunal interpreted Article 3 of the ICTY statute, which provides jurisdiction over a non-exhaustive list of the laws and customs of war, to encompass all obligations in force on the territory of the former Yugoslavia at the time the alleged offenses were committed. Yugoslavia was party both to common Article 3 and Additional Protocol II and the Tribunal convicted several defendants under their provisions. These cases are examined below. ICTR: Rwanda is of particular interest here because the conflict that occurred was purely non-international in character. Article 4 of the ICTR statute grants the Tribunal jurisdiction over serious violations of common Article 3 and Additional Protocol II. To date, no convictions have occurred under Article 4. International Criminal Court: The Rome Statue of the ICC includes prohibitions applicable to internal armed conflicts within Articles 8(2)(c) and 8(2)(e). Article 8(2)(c) includes serious violations of common Article 3. Article 8(2)(e) adds “other serious violations of the laws and customs applicable in armed conflicts not of an international character.” The enumerated list of Article 8(2)(e) incorporates provisions of Additional Protocol II, the Hague Regulations, and even prohibitions previously applicable only to conflicts of an international character. International Law Commission: The ILC’s Draft Code adopts provisions of common Article 3 and Article 4 of Additional Protocol II as applicable to internal armed conflicts. 3. Protected Persons Common Article 3 applies to persons taking no active part in the hostilities including members of the armed forces who have laid down their arms and those who are hors de combat. Additional Protocol II applies to all persons not directly part or who have ceased to take part in the hostilities (Article 4), persons whose liberty has been restricted (Article 5), the wounded, sick, and shipwrecked (Article 7), medical and religious personnel (Article 9) and the civilian population (Article 13). 4. The Threshold Element of Armed Conflict War crimes applying to internal armed conflicts only apply to conflicts characterized by a certain degree of intensity and organization. Common Article 3 does not define armed conflict. Article 1 of Additional Protocol II limits its material field of application to: all armed conflicts which are not covered by [Protocol I] and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. This definition includes five objective criteria: 1) confronting parties, one of which is a state government; and, each of which must have 2) responsible command structure; 3) control over territory; 4) sustained and concerted military operations; and 5) ability to implement the Protocol. Protocol II further excludes non-armed, isolated and sporadic, acts of violence like riots from its scope. Neither this exclusion nor the objective criteria were intended to modify the applicability of common Article 3. While common Article 3 does not apply to every armed conflict, its threshold is thought to be much lower than that of Protocol II. International Criminal Court: In the context of the ICC statute, Article 8(2)(d) similarly limits the scope of Article 8(2)(c) by excluding “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.” Article 8(2)(f) of the ICC Statute expands the applicability of Articles 8(2)(e) past that of Protocol II by eliminating the requirement that at least on government authority be a participant in the conflict. Thus, the ICC protections extend to conflicts where no central government is involved, like the one that occurred in Somalia during the mid-1990s. ICTY: In examining this threshold question, the ICTY held that “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” That tribunal further added that: “International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there. Decision on the Defense Motion for interlocutory appeal on jurisdiction, The Prosecutor v. Dusko Tadic, Case no. para. 70. 5. Other Common Elements ICTY and ICTR: Both the ICTY and ICTR require a nexus between the armed conflict and the criminal act. Likewise, the ICTR has also required a link between the accused and one of the hostile parties. The ICC Elements: The Assembly of States to the Rome Statue of the ICC adopted an Elements of the Crimes document articulating elements for each individual crime in the statute. An element common to all crimes listed in Articles 8(2)(c) and 8(2)(e) is a mental element requiring that the perpetrator was aware of the factual circumstances that established the existence of the armed conflict at the time of the criminal act. K. The Individual Elements: War Crimes CATEGORY I: COMMON ARTICLE 3 1. War Crime of Murder, Mutilation, Cruel treatment, Torture a) Sources of Law Common Article 3(1)(a) Additional Protocol II Article 4(2)(a) ICTY Article 3 ICTR Article 4(a) ICC Article 8(2)(c)(i) b) ICC Elements Article 8(2)(c)(i)-1 to -4 of the ICC Elements: Murder 1. The perpetrator killed one or more persons. 2. Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities. 3. The perpetrator was aware of the factual circumstances that established this status. Mutilation 1. The perpetrator subjected one or more persons to mutilation, in particular by permanently disfiguring the person or persons, or by permanently disabling or removing an organ or appendage. 2. The conduct was neither justified by the medical, dental or hospital treatment of the person or persons concerned nor carried out in such person’s or persons’ interests. 3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 4. The perpetrator was aware of the factual circumstances that established this status. Cruel treatment 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities. 3. The perpetrator was aware of the factual circumstances that established this status. Torture 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind. 3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 4. The perpetrator was aware of the factual circumstances that established this status. c) Precedent Discussing Elements “The primary purpose of common article 3 of the Geneva Conventions was to extend the ‘elementary considerations of humanity’ to internal armed conflicts. Thus, as it is prohibited to kill protected persons during an international armed conflict, so it is prohibited to kill those taking no active part in hostilities which constitute an internal armed conflict. In this spirit of equality of protection, there can be no reason to attach meaning to the difference of terminology utilized in common article 3 and the articles referring to "grave breaches" of the Conventions.” Prosecutor v. Delalic et. al., Case No. IT-96-21-T, Judgment, Nov. 16, 1998. para. 423. 2. War Crime of Outrages upon personal dignity a) Sources of Law Common Article 3(1)(c) Additional Protocol II Article 4(2)(e) ICTY Article 3 ICTR Article 4(e) ICC Article 8(2)(c)(ii) b) ICC Elements Article 8(2)(c)(ii) of the ICC Elements: 1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons. 2. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity. 3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 4. The perpetrator was aware of the factual circumstances that established this status. Outrages against personal dignity can occur against dead persons. The victim need not personally be aware of the existence of the humiliation or degradation or other violation. Relevant aspects of the cultural background of the victim should be taken into account. 3. War Crime of Taking hostages a) Sources of Law Common Article 3(1)(b) Additional Protocol II Article 4(2)(c) ICTY Article 3 ICTR Article 4(c) ICC Article 8(2)(c)(iii) b) The ICC Elements Article8(2)(c)(iii) of the Elements: 1. The perpetrator seized, detained or otherwise held hostage one or more persons. 2. The perpetrator threatened to kill, injure or continue to detain such person or persons. 3. The perpetrator intended to compel a State, an international organization, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons. 4. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 5. The perpetrator was aware of the factual circumstances that established this status. 4. War Crime of Sentencing or execution without due process a) Sources of Law Common Article 3(1)(d) Additional Protocol II Article 6(2) ICTY Article 3 ICTR Article 4(g) ICC Article 8(2)(c)(iv) b) ICC Elements Article 8(2)(c)(iv) of the ICC Elements: 1. The perpetrator passed sentence or executed one or more persons. 2. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 3. The perpetrator was aware of the factual circumstances that established this status. 4. There was no previous judgment pronounced by a court, or the court that rendered judgment was not regularly constituted, that is, it did not afford the essential guarantees of independence and impartiality, or the court that rendered judgment did not afford all other judicial guarantees generally recognized as indispensable under international law. 5. The perpetrator was aware of the absence of a previous judgment or of the denial of relevant guarantees and the fact that they are essential or indispensable to a fair trial. 5. War Crime of Failing to collect and care for the wounded and sick a) Sources of Law Common Article 3(2) Additional Protocol II Articles 7 & 8 b) ICC Elements Not applicable. 6. War Crime of Collective punishment a) Sources of Law Additional Protocol II Article 4(2)(b) ICTY Article 3 ICTR Article 4(b) Note: Based on Geneva Convention IV, Article 33. Prohibits any type of reprisals against civilians. b) ICC Elements Not applicable. 7. War Crime of Acts of terrorism a) Sources of Law Additional Protocol II Article 4(2)(d) ICTY Article 3 ICTR Article 4(d) Note: Based on Geneva Convention IV, Article 33. b) ICC Elements Not applicable. 8. War Crime of Slavery a) Sources of Law Additional Protocol II Article 4(2)(f) ICTY Article 3 Note: Protocol II’s prohibition extends to “slavery and the slave trade in all its forms,” which is meant to include practices such as servitude for the payment of debts, serfdom, the purchase of wives, and exploitation of child labor. b) ICC Elements Not applicable. 9. War Crime of threatening to commit a violation of Additional Protocol Article 4 a) Sources of Law Additional Protocol II Article 4(2)(h) ICTY Article 3 ICTR Article 4(h) b) ICC Elements Not applicable. 10. War Crime of Starvation as method of combat a) Sources of Law Additional Protocol II Article 14 Note: This is a new rule but possibly rooted in common Article 3’s obligation to guarantee humane treatment. c) ICC Elements Not applicable. 11. War Crime of Hostility directed against historic monuments, works of art, or places of worship a) Sources of Law Hague Regulations Article 27 (In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes) Hague Regulations Article 56 (All seizure of, destruction or willful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings) Additional Protocol II Article 16 Hague Convention for the Protection of Cultural Property b) ICC Elements Not applicable. 12. War Crime of Attacks against dangerous forces, namely dams, dykes, and nuclear electrical generating stations a) Sources of Law Additional Protocol II Article 15 Note: List of protected objects is exclusive. b) ICC Elements Category III: ICC Article 8(2)(e) 13. War Crime of Attacking civilians a) Sources of Law Additional Protocol II Article 13(2) ICTY Article 3 ICC Article 8(2)(e)(i) Note: Acts or threats of violence intended primarily to terrorize civilians is also prohibited by Additional Protocol II, Article 13(2). b) ICC Elements Article 8(2)(e)(i) of the Elements: 1. The perpetrator directed an attack. 2. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities. 3. The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack. 14. War Crime of Attacking objects or persons using the distinctive emblems of the Geneva Conventions a) Sources of Law ICC Article 8(2)(e)(ii) b) ICC Elements Article 8(2)(b)(ii) of the Elements: 1. The perpetrator attacked one or more persons, buildings, medical units or transports or other objects using, in conformity with international law, a distinctive emblem or other method of identification indicating protection under the Geneva Conventions. 2. The perpetrator intended such persons, buildings, units or transports or other objects so using such identification to be the object of the attack. 15. War Crime of Attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission a) Sources of Law ICC Article 8(2)(e)(iii) b) ICC Elements Article 8(2)(e)(iii) of the Elements: 1. The perpetrator directed an attack. 2. The object of the attack was personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations. 3. The perpetrator intended such personnel, installations, material, units or vehicles so involved to be the object of the attack. 16. War Crime of Attacking protected objects a) Sources of Law Additional Protocol II Article 16 CTY Article 3(d) ICC Article 8(2)(e)(iv) b) ICC Elements Article 8(2)(e)(iv) of the Elements: 1. The perpetrator directed an attack. 2. The object of the attack was one or more buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives. 3. The perpetrator intended such building or buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives, to be the object of the attack. 17. War Crime of Plunder or pillaging a) Sources of Law Additional Protocol II Article 4(2)(g) ICTY Article 3 (“plunder of public or private property”) ICTR Article 4(f) ICC Article 8(2)(e)(v) b) ICC Elements Article 8(2)(e)(v) of the ICC Elements 1. The perpetrator appropriated certain property. 2. The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use. 3. The appropriation was without the consent of the owner. Note: Appropriations justified by military necessity cannot constitute the crime of pillaging. 18. War Crime of Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, sexual violence a) Sources of Law Common Article 3(1)(c) Additional Protocol II Article 4(2)(e)&(f) ICTY Article 3 ICTR Article 4(e) ICC Article 8(2)(c)(vi) Note: Only the ICC explicitly includes all the listed sexual crimes; however, the same acts are undoubtedly prohibited by the other sources of law, primarily by the “outrages upon personal dignity” provisions. b) ICC Elements Rape 1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. 2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent. Note: “Invasion” is intended to be gender-neutral. Sexual slavery 1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. 2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature. Note: Deprivation of liberty may, in some circumstances, include exacting forced labor or otherwise reducing a person to servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children. Enforced prostitution 1. The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature. Forced pregnancy 1. The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. Enforced sterilization 1. The perpetrator deprived one or more persons of biological reproductive capacity. 2. The conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent. Note: Deprivation is not intended to include birth-control measures which have a non-permanent effect in practice. Genuine consent does not include consent obtained through deception. Sexual Violence 1. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. The conduct was of a gravity comparable to that of a serious violation of article 3 common to the four Geneva Conventions. 3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct. c) Precedent Discussing Elements Rape can also qualify as torture if committed “by, or at the instigation of a public official, or with the consent or acquiescence of an official” … for a purpose that involves punishment, coercion, discrimination or intimidation. Prosecutor v. Delalic et. al., Case No. IT-96-21-T, Judgment, Nov. 16, 1998. paras. 496. 19. War Crime of Using, conscripting and enlisting children a) Sources of Law Additional Protocol II Article 4(3)(c) ICC Article 8(2)(e)(vii) b) ICC Elements Article 8(2)(e)(vii) of the ICC Elements: 1. The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities. 2. Such person or persons were under the age of 15 years. 3. The perpetrator knew or should have known that such person or persons were under the age of 15 years. 20. War Crime of Displacing civilians a) Sources of Law Additional Protocol II Article 17 ICC Article 8(2)(e)(viii) b) ICC Elements Article 8(2)(e)(viii) of the Elements: 1. The perpetrator ordered a displacement of a civilian population. 2. Such order was not justified by the security of the civilians involved or by military necessity. 3. The perpetrator was in a position to effect such displacement by giving such order. 21. War Crime of Treacherously killing or wounding a) Sources of Law Hague Regulations, Article 23(b) (It is especially forbidden… To kill or wound treacherously individuals belonging to the hostile nation or army) Additional Protocol II Article 17 ICC Article 8(2)(e)(ix) b) ICC Elements Article 8(2)(e)(ix) 1. The perpetrator invited the confidence or belief of one or more combatant adversaries that they were entitled to, or were obliged to accord, protection under rules of international law applicable in armed conflict. 2. The perpetrator intended to betray that confidence or belief. 3. The perpetrator killed or injured such person or persons. 4. The perpetrator made use of that confidence or belief in killing or injuring such person or persons. 5. Such person or persons belonged to an adverse party. 22. War Crime of Denying quarter a) Sources of Law ICC Article 8(2)(e)(x) b) ICC Elements Article 8(2)(e)(x) of the Elements: 1. The perpetrator declared or ordered that there shall be no survivors. 2. Such declaration or order was given in order to threaten an adversary or to conduct hostilities on the basis that there shall be no survivors. 3. The perpetrator was in a position of effective command or control over the subordinate forces to which the declaration or order was directed. 23. War Crime of Mutilation, medical or scientific experiments a) Sources of Law ICC Article 8(2)(e)(xi) b) ICC Elements Mutilation 1. The perpetrator subjected one or more persons to mutilation, in particular by permanently disfiguring the person or persons, or by permanently disabling or removing an organ or appendage. 2. The conduct caused death or seriously endangered the physical or mental health of such person or persons. 3. The conduct was neither justified by the medical, dental or hospital treatment of the person or persons concerned nor carried out in such person’s or persons’ interest. 4. Such person or persons were in the power of another party to the conflict. Medical or scientific experiment 1. The perpetrator subjected one or more persons to a medical or scientific experiment. 2. The experiment caused the death or seriously endangered the physical or mental health or integrity of such person or persons. 3. The conduct was neither justified by the medical, dental or hospital treatment of such person or persons concerned nor carried out in such person's or persons’ interest. 4. Such person or persons were in the power of another party to the conflict. Note: Consent is not a defense to this crime. The crime prohibits any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of liberty. 24. War Crime of Destroying or seizing the enemy’s property a) Sources of Law ICTY Article 3(b) ICC Article 8(2)(e)(xii) b) ICC Elements Article 8(2)(e)(xii) of the ICC Elements: 1. The perpetrator destroyed or seized certain property. 2. Such property was property of an adversary. 3. Such property was protected from that destruction or seizure under the international law of armed conflict. 4. The perpetrator was aware of the factual circumstances that established the status of the property. 5. The destruction or seizure was not required by military necessity.