Home > Genocide and Crimes Against Humanity > War

For many centuries, western European attitudes toward the legality of war were dominated by the teachings of the Roman Catholic Church. War was regarded as a means of obtaining reparation for a prior illegal act, and was sometimes regarded as being commanded by God. In this way much of the debate centered on the distinction between just and unjust wars, a distinction that began to break down in the late sixteenth century. In time, leaders justified wars if they were undertaken for the defense of certain vital interests, although there were no accepted objective criteria for determining what those vital interests were. In the twenty-first century, international lawyers and states rarely use the term war. This is because "war" has a technical and somewhat imprecise meaning under international law, and states engaged in hostilities often deny there is a state of war. The difference between war and hostilities falling short of war may appear very fine, but it can have important consequences especially in regard to the relations between states. Since the adoption of the United Nations Charter in 1945, there is a general prohibition on the use of force by states except in accordance with the provisions of the Charter itself. In this way the question is more about the use of force than the right to declare war. This is reflected in the difficulty government representatives have had in finding an acceptable definition for the crime of aggression under the 1998 Rome Statue of the International Criminal Court.

Laws of War/International Humanitarian Law

Among the equivalent and interchangeable expressions, the "laws of war," the "law of armed conflict," and "international humanitarian law," the first is the oldest. War crimes come under the general umbrella of international humanitarian law, and may be defined as the branch of international law limiting the use of violence in armed conflicts. The expression "laws of war" dates back to when it was customary to make a formal declaration of war before initiating an armed attack on another state.

In the twenty-first century, the term armed conflict is used in place of war, and while the military tend to prefer the term law of armed conflict, the International Committee of the Red Cross and other commentators use the expression "international humanitarian law" to cover the broad range of international treaties and principles applicable to situations of armed conflict. The fundamental aim of international humanitarian law is to establish limits to the means and methods of armed conflict, and to protect noncombatants, whether they are the wounded, sick or captured soldiers, or civilians.

International humanitarian law is comprised of two main branches; the law of the Hague and the law of Geneva. The law of the Hague regulates the means and methods of warfare. It is codified primarily in the regulations respecting the Laws and Customs of War on Land ("the Hague Regulations") annexed to the 1907 Hague Convention IV ("the Hague Regulations"). These govern the actual conduct of hostilities and include matters such as the selection of targets and weapons permissible during armed conflict. The law of Geneva is codified primarily in four conventions adopted in 1949, and these are known collectively as the Geneva Conventions for the Protection of War Victims. Their aim is to protect certain categories of persons, including civilians, the wounded, and prisoners of war.

After the piecemeal development of international humanitarian law at the end of the nineteenth century and the beginning of the twentieth century, the experience of World War II exposed the shortcomings in the legal regulation of this field dramatically. This realization led to the adoption of the four Geneva Conventions for the Protection of War Victims in 1949. The adoption of the Conventions, coupled with the earlier well developed body of Hague law governing the conduct of hostilities by armed forces, meant that traditional interstate wars, or "armed conflicts" to use the language of the Conventions, were now well-regulated, in theory at least. The phrase "armed conflict" was employed to make it clear that the Conventions applied once a conflict between states employing the use of arms had begun, whether or not there had been a formal declaration of war.

As the majority of armed conflicts in the cold war period were not interstate wars of the kind envisaged by traditional international humanitarian law, obvious gaps in the legal regulation governing armed conflicts remained. The adoption of the Geneva Conventions marked a break with the past in that Article 3, which was common to all four Conventions, sought to establish certain minimum standards of behavior "in the case of armed conflict not of an international character." In an attempt to address deficiencies in the 1949 Geneva Conventions, Additional Protocols I and II were adopted in 1977.

Protocol I applies to international armed conflict and brought what was often referred to as "wars of national liberation" within the definition of international conflicts. Protocol II, on the other hand, did not apply to all noninternational armed conflicts, but only to those that met a new and relatively high threshold test. Despite the time and effort that was involved in drafting and agreeing the Protocols, the result was less than satisfactory, especially from the point of view of classifying armed conflicts to determine which Protocol, if any, applies in a given case. The applicability of Protocol II is quite narrow, and this helps explain in part why so many states are party to it.

Codification of War Crimes

The United Nations Commission for the Investigation of War Crimes was established in the aftermath of World War II in order to prepare the groundwork for the prosecution of war criminals arising from atrocities committed during the war. One of the features of the 1945 Charter of the International Military Tribunal at Nuremberg is that the crime of genocide did not appear in its substantive provisions. Consequently, the Tribunal convicted the Nazi war criminals of "crimes against humanity" for the crimes committed against the Jewish people in Europe.

The relationship between war crimes, genocide, and crimes against humanity is somewhat complex due to the historical development of each category of international crime. The most significant practical legal issue to be considered is the necessity for some form of armed conflict before there can be a war crime. In the case of genocide, there is no requirement for such crimes to take place in the context of a war or armed conflict. However, such crimes can often be committed as part of a wider conflict to achieve some of the broader aims of participants. The chaos and breakdown in law and order characteristic of armed conflict provides potential perpetrators with an opportunity to pursue illegitimate objectives and methods.

Historically, it was also probably easier to evade responsibility for such crimes when they were committed in the course of an armed conflict. With the advent of the International Criminal Tribunals for the former Yugoslavia and Rwanda, Special Courts and the International Criminal Court, this situation no longer prevails.

The concept of a war crime is broad and encompasses many different acts committed during an armed conflict. It is synonymous in many people's minds with ethnic cleansing, mass killings, sexual violence, bombardment of cities and towns, concentration camps, and similar atrocities. War crimes may be defined as a grave or serious violation of the rules or principles of international humanitarian law—for which persons may be held individually responsible. The Geneva Conventions oblige states to provide effective penal sanctions for persons committing, or ordering to be committed grave violations of the Conventions. In fact, in such cases all states are required to assume power to prosecute and punish the perpetrators. Such provisions only apply if the violations were committed in the course of an international armed conflict. In reality, it is often difficult to determine if a particular situation amounts to an "international" or a "noninternational armed conflict." However, although legally of some significance, it does not alter the serious nature of the crimes in the first instance.

Furthermore, decisions of the International Criminal Tribunals for the former Yugoslavia and Rwanda have ruled that many principles and rules previously considered applicable only in international armed conflict are now applicable in internal armed conflicts, and serious violations of humanitarian law committed within the context of such internal conflicts constitute war crimes. Such decisions, and the adoption of the Rome Statute of the International Criminal Court, have tended to blur the legal significance of the distinction between international and noninternational armed conflicts.

Genocide and Crimes Against Humanity

The judgment of the International Military Tribunal at Nuremberg was controversial in some respects. One of the main reasons why it was considered necessary to draft a convention that dealt specifically with the crime of genocide was the limited scope given to "crimes against humanity" at the time.

A crime against humanity referred to a wide range of atrocities, but it also had a narrow aspect, and the prevailing view in the aftermath of World War II was that crimes against humanity could only be committed in association with an international armed conflict or war. The Allies had insisted at Nuremberg that crimes against humanity could only be committed if they were associated with one of the other crimes within the Nuremberg Tribunal's jurisdiction, that is, war crimes and crimes against peace. In effect they had imposed a requirement or nexus, as it became known, between crimes against humanity and international armed conflict. For this reason many considered that a gap existed in international law that needed to be addressed. The General Assembly of the United Nations wanted to go a step further recognizing that one atrocity, namely genocide, would constitute an international crime even if it were committed in time of peace. The distinction between genocide and crimes against humanity is less significant today, because the recognized definition of crimes against humanity has evolved and now refers to atrocities committed against civilians in peacetime and in wartime. The Rome Statute of the International Criminal Court provides that crimes against humanity must have been committed as part of a "widespread or systematic attack directed against any civilian population."

Some states were concerned that international law did not seem to govern atrocities committed in peacetime (as opposed to during a time of armed conflict or war) and called for the preparation of a draft convention on the crime of genocide. The Convention on the Prevention and Punishment of the Crime of Genocide was adopted in 1948, and entered into force on January 11, 1951.

Under the Convention, the crime of genocide has both a physical element—certain listed acts such as killing, or causing serious mental or bodily harm to members of a racial group—and a mental element, which upholds the acts must be committed with intent to destroy, in whole of in part, a national, ethnic, racial or religious group "as such." Although earlier drafts had included political groups, this was later dropped during final drafting stages. In this way, the killing of an estimated 1.5 million Cambodians by the Khmer Rouge is not generally considered to have been genocide as defined under the Genocide Convention (both the perpetrators and the majority of the victims were Khmer). However, its widespread and systematic nature qualifies it as one of the twentieth century's most notorious crimes against humanity. The definition in the Convention is essentially repeated in Article 6 of the Rome Statute of the International Criminal Court, and in the relevant statues of the International Criminal Tribunals for the former Yugoslavia and Rwanda.

SEE ALSO International Criminal Court; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia; Nuremberg Trials; United Nations War Crimes Commission; War Crimes

Ray Murphy