WAR CRIMES AND INTERNATIONAL LAW

Introduction:

Wars can never be justified by security excuses. It is a violation of human rights in itself. However, certain rules must be followed during a war. In the epic ‘Mahabharata’ we could find that there existed certain rules which governed wars in the Kurukshetra. For example, there was a rule that no battle would be conducted after sunset and before sunrise. The International Laws have ‘Laws of War’ which contains the set of acts that are permitted and not permitted during wars. When these rules are violated in such a way that civilian lives are hazardously affected, war crimes are said to be committed. War crimes are ‘grave’ violations of human rights. The Geneva Conventions are the most prominent provisions of international law which specify the meaning of war crimes. They are divided into four conventions and three additional protocols. Article 147 of the Fourth Geneva Convention defines war crimes as “wilful killing, torture or inhuman treatment, including … wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”. It has been highlighted that any act that causes violations of international war laws or customs shall be deemed a crime. Any foreign act which destructs civilian property or the right to life and liberty is a war crime.[1] It also contains that murder, ill-treatment, or deportation of civilians or prisoners of war for slavery is a war crime. Torture, inhuman treatment, biological experiments, and the killing or hanging of hostages all come under the horrifying umbrella of war crimes.[2]

Principles of war:

The famous Rome Statute which created the International Court of Justice (ICJ) and International Criminal Court (ICC) also mentions in Article 7 about “Crimes Against Humanity”. It talks about the heinous crimes of murder, rape, genocide, and so on. The Rome Statute talks about the three principles that decide that a war crime has been committed. These three principles are described as follows:

Proportionality: If an alien country attacks a country with the motive to destroy its military and in turn causes excessive civilian causalities, it is said to have breached the principle of proportionality. For example, if a military unit poses an imminent threat, then a country should not harm every civilian living in that country.

Distinction: A military personnel is way different from a common man. A civilian is never expected to go to the battlegrounds and fight. Therefore, the enemy country is also not expected to treat civilians as military personnel. Sarabjit Singh, an Indian civilian, mistakenly crossed the borders and landed in Pakistan. It later became clear that he was a civilian and not military personnel. Even then he was captured, brutally tortured, and later hanged in Pakistan. This can be taken as an example of a war crime.

Precaution: War brings death and destruction. Therefore, it should be the last option for defending oneself. The principle of precaution asks a country to ponder all possible options for peace and agreements before declaring war.

History of War Crimes:

War Crimes are those heinous offences that have always existed internationally. However, they were first defined by the USA’s end of the 19th Century under the Lincoln government. Abraham Lincoln brought the Liberian Code in 1863, during the American Civil War. The Liberian Code was a set of instructions that were expected to be followed during a war. The second important effort was made by Henry Dunant. He witnessed the horrors of wars and war crimes in the Battle of Solferino in 1863 and wrote everything in his book “A Memory of Solferino”. All these incidents led to the development of the famous Geneva-based humanitarian society, the International Committee of Red Cross (ICRC). Henry Dunant was also felicitated with the prestigious Nobel Peace Prize. The Swiss government was always keen on the welfare of humanity. After the generous efforts made by Lincoln and Dunant, the government held an international conference. Hence, in 1864 the first Geneva Conventions on “Wounded Armies in the Field” was adopted. As time passed, and more crimes were committed, especially in the world wars various provisions were added to the convention. For example, provisions related to prisoners of war were added after the second world war. Further, the Nuremberg and the Tokyo trials conducted after the second world war tried the aggressive war leaders of Germany and Japan respectively. The trials concluded with the framing of the four major Geneva Conventions.

The distinction between war crimes and other kinds of crime:

The only court which has the jurisdiction to deal with war crimes, crimes against humanity, crimes of aggression, and genocide is the International Criminal Court. These kinds of mass crimes are similar in some aspects, though dissimilar in numerous aspects.

War crimes vs. crimes against humanity: When one country attacks another country and in turn violates the rules of war by hurting civilians, war crimes are said to be committed. However, when humans commit atrocities against humanity, irrespective of the geographical borders of a nation, crimes against humanity are said to be committed.

War crimes vs. crimes of aggression: Crimes of aggression lead to war crimes when aggravating. Crimes of aggression are the aggressive acts conducted by a political or military leader of one state against the citizens of other states, whereas war crimes are the violation of the fundamental rules of war.

War crimes vs. genocide: All the cases of aggression, crimes against humanity, genocide, and war crimes leads to mass killing. The basic and most common difference between genocide and war crime is that genocide is the deliberate killing of a large number of people belonging to a specific religious or ethnic group, whereas, war crime may be the deliberate killing of a large number of people. Therefore, crimes against humanity, crimes of aggression, and genocide, all are subsets of war crimes.

Conclusion:

War is a man-made disaster. While war crimes are deliberate inhuman atrocities. Wars bring destruction. While war crimes are those types of calamities that begin with hatred and end with havoc. The recent attack by Russia on Ukraine was a disappointing example of today’s war crimes. The heritage, public and personal property of civilians were burned down to ashes. Moreover, there were numerous civilian casualties. Therefore, International and National organizations must make their earnest efforts to help stop a war and its resultant war crimes.

Author(s) Name: Shubhanshi Suman (Bharati Vidyapeeth, New Law College, Pune)

References:

[1] Fourth Geneva Convention, Part 2, Section III, Article 53

[2] Fourth Geneva Convention, Part 1, Article 3

error: Content is protected !!