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Grave offenses against the laws of warfare entailing the penal responsibility of individuals constitute war crimes, long punished according to national laws and procedures. At the international level, war crimes were first clearly defined after World War II by the Charter of the International Military Tribunal. The international experience with prosecuting and punishing war criminals was followed by the codification of rules in the 1949 Geneva Conventions, the 1977 Additional Protocols, the statutes of international criminal tribunals for former Yugoslavia and Rwanda, and most recently, in the Statute of the International Criminal Court.

Much earlier precedents for punishing war crimes can be found in ancient Greece and Rome, the Laws of Manu in India, the code of Bushido in Japan, the Old Testament and the Qur'an. Violations of the laws and customs of war were punished by military commanders or national tribunals. Internationally, the first reported trial against a war criminal took place in Breisach in 1474, and in which Peter of Hagenbach was condemned for "crimes against the laws of man and of God."

The Lieber Code, promulgated by President Lincoln during the U.S. Civil War in 1863, was one of the first attempts to codify laws of war on national level. It provides for the following:

all wanton violence committed against persons in the invaded country, all destruction of property . . . all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense. A soldier, officer, or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior.

The Oxford Manual on the laws of war on land, adopted in 1880 by the Institute of International Law, provided in Article 84 that "offenders against the laws of war are liable to the punishments specified in the penal law." Article 3 of the 1907 Hague Convention respecting the laws and customs of war on land only required that "a belligerent party which violates the provisions of the . . . Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces." No individual personal responsibility was yet introduced into international law.

World War I

World War I led to a major step forward in the development of the rules concerning war crimes. Offenses against the law of war were prosecuted by national courts of several belligerent countries, and the Treaty of Versailles (1919) proclaimed that the responsibility for these offenses fell to the German emperor. However, an attempt to create an international court was opposed by the United States. The Dutch government granted asylum to the now-deposed emperor, William II of Hohenzollern, who could then not be tried by the special tribunal envisaged by the treaty.

Article 228 of the treaty also stated that "the German Government recognizes the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war." The persons accused of the crimes, however, were not handed over. Instead, Germany tried some of the accused before the Supreme Court of Leipzig, created expressly for this purpose. Of the 896 individuals accused of war crimes, only 45 were tried, and only 9 were convicted. The sentences were light and the convicted prisoners were pardoned a few years later.

Prosecution of War Crimes during and after World War II

Determined not to repeat the problem of allocating war-crimes responsibility after World War I, the Allied powers tried a new approach during World War II. They repeatedly warned the Axis powers of their responsibility for war crimes. The Moscow Declaration of 1943 distinguished between two sorts of war crimes. The first category of crimes were committed by German soldiers and members of the Nazi party who were responsible for, or took a consenting part in atrocities, massacres, and executions. They were sent back to be tried and punished in the countries where their crimes had been committed. The second category of German war criminals constituted those whose offenses had no particular geographical localization. These would be punished by joint decision of the governments of the Allies.

For the first category of war criminals, the first trials were held in Krasnodar (Russia) and Kharkov (Ukraine) in 1943, before the war had ended. Military tribunals for the second category of criminals were set up in Germany's occupation zones and were regulated by Law No. 10, of the Allied Control Council, which was passed on December 20, 1945 and which established a uniform basis of material law and procedure.

International prosecution was based on the London Agreement for the prosecution and punishment of the major war criminals of the European Axis Power, signed on August 8, 1945. This agreement includes the Nuremberg Charter of the International Military Tribunal. Article 6 of the charter established individual responsibility for crimes against peace, war crimes, and crimes against humanity. It was the first time that this terminology appeared in an international treaty. The definitions of each category of crime, as given by the charter, was only exemplary, not exhaustive.

The principles established by the Charter and the judgment of the Nuremberg tribunal were affirmed and recognized by the United Nations General Assembly Resolution 95(I), which was adopted on December 11, 1946. They were not fully formulated until later, however—in 1950, by the International Law Commission. Another tribunal, similar to that of Nuremberg, was established in Tokyo and was based on a Special Proclamation of General Douglas MacArthur as the Supreme Commander in the Far East. MacArthur took this action by virtue of the authority delegated to him by the four Allied Powers at war with Japan.

Non-Applicability of Statutory Limitations

In order to avoid the accused escaping prosecution because of statutory limitations to the crimes committed during the World War II, member states drafted the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, which was adopted by the United Nations General Assembly on November 26, 1968. At the regional level, the European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes was signed at Strasbourg on January 25, 1974. This new convention narrowed the definition of crimes against humanity in comparison with the United Nations Convention.

The 1949 Geneva Conventions and 1977 Additional Protocols

The four Geneva Conventions adopted on August 12, 1949, underlined the importance of domestic legislation and domestic jurisdiction in the prosecution and punishment of war criminals. According to the Conventions, the contracting parties must:

• enact legislation necessary to provide effective penal sanctions for grave breaches;
• search for those who have committed or gave the order to commit grave breaches;
• bring such persons before its courts, regardless of their nationality, or hand over such persons for trial to another contracting party for trial and punishment; and
• take measures necessary to suppress all acts contrary to the provisions of the convention other than the grave breaches.

Grave breaches are defined in common Articles 50/51/130/147 as acts committed against persons and property protected by the conventions, including:

• willful killing;
• torture or inhuman treatment, including biological experiments;
• willfully causing great suffering or serious injury to body or health;
• unlawful deportation or transfer or unlawful confinement of a protected person under the Fourth Convention;
• compelling a protected person to serve in the forces of a hostile Power; willfully depriving a protected person of the rights of fair and regular trial prescribed in the conventions;
• taking of hostages
• extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

The First Additional Protocol revisited the definition of war crimes, specifying the conditions that would render such crimes punishable by law. It is important to emphasize that not all war crimes are, in fact, "grave breaches" as listed in the Geneva Conventions and the First Additional Protocol. The broader conceptual category of war crimes covers both grave breaches and other serious violations of the laws and customs of war, but according to the First Additional Protocol, not every violation of the laws of warfare "would of necessity constitute a punishable act."

The First Protocol supplemented, developed, and clarified the "system of repression" stipulated in the 1949 Geneva Conventions by explicitly accepting the same list of "grave breaches" as were defined in the Conventions, and by requiring that the system of repression, whereby war crimes may be prosecuted and punished, be applied to these grave breaches. In addition, the protocol expanded the list of grave breaches to include any willful act or omission that seriously endangers the physical or mental health or integrity of any person who is in the power of an enemy and which violates any in a series of specified prohibitions. The specified prohibited acts include any unjustified act or omission or medical procedure not required by the state of the victim's health; physical mutilation; medical or scientific experiments; or the removal of tissue or organs. For an act to constitute a violation it must have been committed willfully, in violation of relevant provisions of the Protocol, and it must have caused death or serious injury to body or health. The Protocol goes on to list the following acts as criminal under international law

• Making the civilian population or individual civilians the object of attack;
• 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;
• 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;
• Making non-defended localities and demilitarized zones the object of attack;
• Making a person the object of attack in the knowledge that he is hors de combat;
• The perfidious use of the distinctive emblem of the red cross, red crescent, or red lion and sun, or of other protective signs recognized by the Conventions of this Protocol;
• The transfer by an 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;
• Unjustifiable delay in the repatriation of prisoners of war or civilians;
• Practices of apartheid or other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination;
• Intentionally targeting clearly recognized historic monuments, works of art, or places of worship which constitute the cultural or spiritual heritage of peoples, resulting in the extensive destruction thereto, when such locales or objects have been accorded special protection and when these targets are not located in the immediate proximity of military objectives;
• Depriving a person protected by the Conventions and the Protocol of the rights of fair and regular trial.

In addition to the grave breaches, other serious violations of the laws and customs of war, including those stipulated in Article 23 of the 1907 Hague Regulations, remain war crimes and are punishable within the framework of customary international law.

The Nuremberg principles specified that complicity is also a crime under international law. Therefore, joint offenders and accessory accomplices are also punishable. An individual who commits a war crime is personally liable, regardless of his rank or governmental position. The commander is responsible, as are his subordinates for such violations. Military commanders must prevent or suppress war crimes, report breaches, and ensure that members of armed forces under his command are aware of their obligations.

Treatment of Offenders

An offender who benefits from the status of prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts and the same procedure as would be used in trying the members of the armed forces of the detaining power. The Convention and the Protocol prescribe judicial guarantees of the fair treatment for all military and civilian offenders. Even if a person does not benefit from the status of protected persons, that person will always benefit from the fundamental guarantees provided by human rights and by Article 75 of the Protocol, which express rules of customary law. The death penalty cannot be imposed if such penalty has been abolished by the detaining power.

Repression of War Crimes after 1945

Several domestic jurisdictions prosecuted and punished war criminals after 1945. One case was the massacre of forty-seven Arabs in Kafr-Kassem in October 29, 1956. Another occurred in 1958, when a military tribunal in Jerusalem condemned two officers and six border guards to seven to seventeen years imprisonment. The sentence was later reduced. In the United States, in 1971, a court martial sentenced U.S. Lieutenant William Calley to life imprisonment for his responsibility in the My Lai massacre of March 16, 1968, in which 347 civilians were killed in a village 510 kilometers outside of Saigon, Vietnam. His sentence was later reduced to 20 years, and he was paroled in 1974. Two other officers received disciplinary sanctions for their involvement in the same incident.

After the invasion of Kuwait in 1990, the United States, the United Kingdom, and the UN Security Council warned Iraqi authorities to respect the rules of war. The Security Council passed Resolution 674 in October 29, 1990, reaffirming the duty of Iraq "to comply fully with all terms" of the Fourth Geneva Convention and proclaiming Iraq's liability, as well the liability of individuals, for grave breaches. The resolution invited the UN member states "to collate substantial information in their possession or submitted to them on the grave breaches by Iraq . . . and to make this information available to the Security Council." In the wake of the second Iraq war, the provisional Iraqi government adopted the statute of a special tribunal in 2003 to try war criminals, including Iraq's former president, Saddam Hussein.

Crimes Committed in Former Yugoslavia and in Rwanda

During the conflicts in Yugoslavia, the UN Security Council required compliance with the rules of international humanitarian law and affirmed individual responsibility for violations. The United Nations created a commission of experts to investigate the crimes committed on the territory of former Yugoslavia. With Resolution 808 (1993), the Security Council established the International Tribunal for the Former Yugoslavia (ICTY). The tribunal deals with grave breaches of the Geneva Convention, violations of the laws and customs of war, genocide, and crimes against humanity (Articles 2 through 5). The definition of war crimes was based on the provisions of the Geneva Conventions and customary rules of international law.

With Resolution 955 (1994), the Security Council established the International Criminal Tribunal for Rwanda (ICTR), which was responsible for prosecuting genocide and other serious violations committed in the territory of Rwanda and its neighboring between January 1 and December 31, 1994. The list of crimes includes genocide, crimes against humanity, and violations of Article 3 of the Geneva Conventions and of the Convention's Additional Protocol II. The crimes were limited to those committed in the course of the internal conflict.

The statutes of both tribunals affirmed the principle of individual responsibility for planning, instigating, ordering, committing, or otherwise aiding and abetting in the planning, preparation, or execution of such acts. The concept of command responsibility was included: the official position of the accused does not relieve the person of responsibility nor mitigate the punishment, nor does the fact that the person ordered the acts but did not commit them personally. The fact that an accused person acted on the orders of a superior does not relieve the person of responsibility, either, but "may be considered in mitigation of the punishment."

By April 2004, the ICTY had tried forty-six individuals accused of genocide, war crimes, and crimes against humanity: Twenty-five of the defendants were judged guilty and began serving their sentences, A further sixteen were found guilty but began the process of filing appeals. Three persons were found not guilty on appeal. Two of the accused were acquitted. By the same date, the ICTR had completed trials for twenty cases.

The tribunals have concurrent jurisdiction with national courts, but in cases of conflict, the international tribunals have primacy over national courts and may formally request national courts to defer to them. Both tribunals made significant contributions to the development of international humanitarian law and to criminal law in general. They also helped to define and explain legal norms and establish the path for the future International Criminal Court (ICC). For instance, the appeals chamber of the ICTY, after hearing the Tadic case, came to the conclusion that "customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife."

The Special Court for Sierra Leone

The Special Court for Sierra Leone was established on January 16, 2002, by joint agreement of the government of Sierra Leone and the United Nations. The court was mandated to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean domestic criminal law committed in the territory of Sierra Leone since November 30, 1996. As of November 2003, thirteen persons from all three of the country's former warring factions were indicted by the special court. They were charged with war crimes, crimes against humanity, and other serious violations, including murder, rape, extermination, acts of terror, enslavement, looting and burning, sexual slavery, conscription of children into an armed force, and attacks on UN peacekeepers and humanitarian workers.

International Criminal Court

After several attempts in the past, most notably in 1919 and 1937, the United Nations adopted the Rome Statute of the International Criminal Court on July 17, 1998. The ICC is independent from the United Nations, and its relations with them is governed by an agreement that has been approved by the UN General Assembly. The treaty creating the ICC came into force on July 1, 2002, and by February 19, 2004, ninety-two states had become signatories to the treaty. The ICC's judges and prosecutor were elected in 2003. The court is based in the Hague.

In its founding statute, the ICC enumerates the crimes over which it has jurisdiction. These include genocide, war crimes, crimes against humanity, and crimes of aggression. The ICC accepts the 1948 Genocide Convention's definition of what constitutes the crime of genocide. The Rome Statute also provides a detailed definition of what constitutes a crime against humanity, which is markedly better developed than the definition provided in the Nuremberg Charter. It also defines several other essential terms, including extermination, enslavement, deportation and forcible transfer or torture.

The ICC assumes jurisdiction over war crimes that have occurred "as part of a plan or policy or as part of a large-scale commission of such crimes." These are not the only acts against which the ICC can take action however. According to the Rome Statute, the ICC can prosecute

• (1) Grave breaches of the Geneva Conventions of August 12, 1949;
• (2) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law. The statute then goes on to descript 26 specific prosecutable acts that may be committed in international armed conflicts;
• (3) In the case of an armed conflict not of an international character, the ICC may prosecute any violations of the 1949 Geneva Conventions that have been committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those who are no longer in active combat due to sickness, wounds, detention, or any other cause;
• (4) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, referring to the provision of Protocol II and customary rules of international law.

The Statute specifies that its right to prosecute acts perpetrated in "armed conflicts not of an international character" does not apply to situations of internal disturbances and tensions such as riots, isolated and sporadic acts of violence, or other acts of a similar nature. Moreover, it presupposed that prosecutable violations in noninternational armed conflicts must have taken place in the territory of a state when there is protracted armed conflict between governmental authorities and organized armed groups, or a similarly protracted armed conflict between such groups.

The Rome Statute affirms several broadly accepted legal principles such as nullum crimen sine lege and nulla poena sine lege (there can be no prosecution, nor punishment, for acts that were not prohibited by law at the time). This establishes that, even though an act may today be defined as illegal, that law cannot be applied retroactively to a time when it was not yet a part of the legal code. The statute also affirms the concept of non bis in idem, which disallows double jeopardy: an individual cannot be tried twice for the same offense. In addition, it affirms the principle of individual responsibility, denies prosecutorial jurisdiction over persons less than 18 years of age, and establishes that there is no statute of limitation for the crimes under its jurisdiction. Finally, it expressly holds commanders and other superior officers responsible for acts carried out under their orders, and rejects the defense strategy of claiming immunity for individuals who hold (or held, at the time of the violation) head-of-state status.

These provisions constituted a significant step forward in international criminal law, particularly by filling certain gaps that had been left unaddressed in the Geneva Conventions. For instance, neither the Geneva Conventions, nor their Additional Protocols included a provision to address the defense that an accused was innocent by virtue of acting on the orders of a superior. Article 33 of the ICC's Rome Statute states that, a person who commits a prosecutable crime on the orders of another (a government or military superior) cannot escape criminal responsibility except in certain specific circumstances. The defendant, in such a case, must be able to show the law was manifestly lawful, or that he or she was under a legal obligation to obey orders of the Government or the superior in question or did not know that the order was unlawful. By the very definition of genocide or crimes against humanity, however, any orders to commit such crimes are manifestly unlawful, which makes the defense of "acting on superior orders" extraordinarily difficult to sustain.

The creation of the International Criminal Court is due, in large part, to the efforts of non-governmental organizations (NGOs). A coalition of thirty NGOs was created on February 25, 1995, which quickly grew to 800 by the opening of the Rome Conference (at which the ICC was created) in June 1998, of which 236 were in attendance at the meetings. During the conference, attendees focused on substantive issues and sought to establish the broadest possible jurisdiction for the newly created court. They also worked to create a system of complementarity, by which national courts held primary responsibility for prosecutions; an independent prosecutor, and a court that was free from the interference of any political body, including the Security Council. Other issues addressed by the conference included provisions for restitution for victims, the incorporation of gender concerns within the definition of actionable crimes; and a mechanism to assure the court with adequate funding over the long term.

SEE ALSO Geneva Conventions on the Protection of Victims of War; Hague Conventions of 1907; Humanitarian Law; Nongovernmental Organizations

Jiri Toman