What difference does it make to the dead, the orphans and the homeless,
whether the mad destruction is wrought under the name of totalitarianism or in
the holy name of liberty or democracy?
These concerns of Mahatma Gandhi have
found echo in the International Humanitarian Laws formulated to govern the
conduct of states and individuals during conflict. War or armed conflicts among
nations have been a part of the world history since time immemorial.
in itself can squarely fall under the definition of crime, there are certain
acts on part of the opposing troops, that are detested by international
community as being violative of human rights. Acts such as torturing and killing
of prisoners and civilians, employing child soldiers, attacks on educational
and/or religious institutions, genocide amongst others, are termed as War
Though various efforts have been made by the international community to avoid
such war like situation, not all efforts have proved to be fruitful and thus
there arises a need to regulate the conduct of the states during such times. War
in any form has disastrous consequences. Uncodified rules of conduct have to
some extent proved to act as cushion thereby easing the aftermath on civilians.
Upon a microscopic view of the humanitarian laws, one would realize that these
laws to a great extent form a part of jus cogens principle of international
Definition of War crimes
There seems to exist no substantial definition of war crimes which could be
used by criminal tribunals and courts while dealing with war crimes. Till date
the most widely used approach with regard to a war crime is an act which is
considered as violative of the law of war and has been criminalized.
Over the years, following two parameters have been recognized by the
international community to term a crime as a war crime, namely:
- When an act is violative of International Humanitarian Law; and
- Such an act is considered serious.
Thus, not all acts that are violative of International humanitarian Laws are
considered as being war crimes.
The rules governing war/conflict finds its roots way back in the eighteenth
century. However, the concept of war crimes
has evolved at a much later date.
The earliest traces of the concept of war crimes dates back to 'the Lieber
Code, issued by President Abraham Lincoln in 1863 to regulate the conduct of
Armies of the United States in the Field.
Though it did not refer to war crimes,
the Lieber Code stipulated that
the law of war disclaimed all cruelty and bad faith concerning engagements
concluded with the enemy during the war,
and that violations shall be severely punished.
The Code provided for
prosecution of soldiers who violated the law of war.'
One of the earliest International treaties such as Hague and Geneva, relating to
laws of war have failed and neglected to define war crimes. Thus, an attempt has
been made by the Roman Statute to list down acts amounting to war crimes
Article 8 of the Roman Statute defines war crimes and it reads as under:
For the purpose of this Statute, war crimes
- Grave breaches of the Geneva Conventions of 12 August 1949, namely, any
of the following acts against persons or property protected under the
provisions of the relevant Geneva Convention:
- Wilful killing
- Torture or inhuman treatment, including biological experiments;
- Wilfully causing great suffering, or serious
injury to body or health;
- Extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly;
- Compelling a prisoner of war or other protected person to serve in the
forces of a hostile Power;
- Wilfully depriving a prisoner of war or other
protected person of the rights of fair and regular trial;
- Unlawful deportation or transfer or unlawful confinement;
- Taking of hostages'
Origin of International Tribunals dealing with war crimes
In the post-World War – II period, Allied powers had sought to establish an
International Tribunal to prosecute Nazi Officials for crimes committed against
humanity. This tribunal was known as the Nuremberg Trials. The trial had
stretched over for 13 days but with no effective outcome. It failed to act as a
deterrent against future war crimes and was thus perceived as being ineffective
and inefficient. However, it is regarded as a milestone in the idea of creation
of such an international establishment dealing with war crimes and crimes
In wake of the gruesome crimes committed against humanity in Yugoslavia in 1990,
the United Nations took it upon itself to set up an International Criminal
Tribunal for Former Yugoslavia (ICTY) that 'provided victims an opportunity to
voice the horrors they witnessed and experienced, and proved that those
suspected of bearing the greatest responsibility for atrocities committed during
armed conflicts can be called to account.' It may be noted here that ICTY was
operative for a period of 24 years beginning from 1993 to 2017. During its
mandate, it has greatly contributed in dealing with crimes against humanities
and war crimes.
Establishment of International Criminal Court
Owing to the success of ad hoc criminal tribunals in dealing with war crimes, a
need was felt by various nation states for establishment of a permanent judicial
body so as to deter prospective war criminals, bring justice to the victims of
atrocities and to establish the rule of law. Accordingly, the Rome Statute of
International Criminal Court was adopted by the United Nations whereby the
permanent International Criminal Court (ICC) is established.
'The Rome Statue grants the ICC war crimes jurisdiction over grave breaches
the Geneva Conventions of 1949, serious violations of Common Article 3 to the
Geneva Conventions, and other serious violations of the laws and customs
applicable in international armed conflict and NIAC (non – international armed
conflict). The ICC having been found entirely under the watchful eye of the
UN Security Council, thus giving rise to various apprehensions regarding fair
play. The Rome Statute has been adopted and ratified by 111 countries and it is
pertinent to note that the non – signatories to the Statute amount to a majority
of the world's population.
Working of international tribunals
Upon a microscopic analysis of these tribunals, one would experience an
epiphany, that these tribunals had been set up by specific nation states to deal
with crimes committed within a specified territorial jurisdiction. Even the idea
of establishment of a permanent international judicial forum was promulgated by
the super powers and thus arises criticism, in respect of independence of these
tribunals. However lopsided the functioning of these tribunals may seem, the
efforts of the world community in creating a new threshold for dealing with
heinous crimes cannot be disregarded. One such example is the establishment of
International Criminal Court.
'The International Criminal Court ( ICC ) is an unprecedented initiative by the
world community to go over the heads of national governments and bring to trial
and punish individuals responsible for the commission of genocide, war crimes,
crimes against humanity and aggression in situations when the countries to which
they belong are unable or unwilling to bring them to justice. There has been
widespread international sentiment for a long time that such an independent,
permanent criminal court was needed to deal with heinous crimes of international
concern in such situations.'
Competence of tribunals in dealing with war crimes:
The answer to the question as to whether tribunals have achieved their objective
in effectively dealing with war crimes, cannot be provided with certainty. The
organisational structures, lack of robust support from international community,
lack of definition of war crimes are some of the issues that pose a serious
obstacle in effectively dealing with war crimes by tribunals. A few of the
reasons leading to inefficiency of the tribunals are discussed below:
- No clear definition
Tribunals were set up to deal with perpetrators of war crimes, in addition to
crimes against humanity, genocide, violation of Geneva Convention and state
aggression. What is interesting to note is that all the other crimes that fall
within the jurisdiction of these tribunals could be referred to as legal
violations of international law since these crimes have been defined with
certainty by various conventions and treaties. This drawback in a way halts the
smooth process of dealing with war crimes.
As there exists no certainty with
regard to what is a 'war crime' and how can a war crime be differentiated from
that as crime against humanity, there is bound to arise difference of opinions
in tagging an act as a war crime. Thus, a need is felt by the international
community to define war crime.
- Enforcement mechanism
Though it is true that tribunals have had a steady conviction rate in respect of
crimes committed against humanity, the fact that there has always been
handwringing amongst international justice system with regard to enforcement of
these convicts. 'Individuals convicted of crimes by the ICTR, ICTY, or the
Mechanism do not serve their sentences in the United Nations detention
facilities in Arusha or The Hague, because these facilities are not
penitentiaries. Sentences are served in UN Member States that have concluded
enforcement agreements with the United Nations for sentences pronounced by the
ICTR, the ICTY or the Mechanism' . This system of enforcement has seldom
proved to be effective.
- Organisational Structure
International Criminal Tribunals have been set up under the guidance and
instance of the United Nations' Security Council, thus giving rise of
justifiable apprehensions with regard to impartiality of there tribunals. In
effect it is believed that the permanent members of the Security Council have
wider hold over the functioning of these tribunals thereby creating lack of
trust amongst the non-signatories to these tribunals.
African nations in
particular have felt that these tribunals operate on political and racial bias
and has thus gone forward to accuse the ICC with disproportionate targeting of
the African continents. As ICC is regarded as too expensive an affair, the
funding required for the functioning is majorly received from the permanent
member states of UN Security Council, which furthers the bias thereby tainting
the independence of these tribunals.
- Lack of robust support
The concept of State Sovereignty is so deeply ingrained within majority of the
nation states that acceptance of an international jurisdiction over crimes
against humanity & war crimes, is unimaginable. To protect and preserve the
infringement of its state independence, various nation states have abstained
from signing or ratifying the Rome Statute.
Major power like United States of
America have too abstained from ratifying the Rome Statute as a measure to
protect its military officers from the purview of the ICC. Due to such non
participation by few of the major nation states, it is difficult to bring
justice to the victims of war crimes.
As a principle of international law, no
state can be forced to accept the jurisdiction of any tribunal or state, thus
the non-signatory member states may under the garb of putting their military
personnel to trial before their national judicial forums, may well abstain from
surrendering such perpetrators to the jurisdiction of international courts.
Though there exists various road blocks in effectively dealing with war crimes
by international forums, the efforts in this behalf are noteworthy and have till
a large extent acted as a deterrent against commission of war crimes. The idea
of establishment of an international criminal forum is itself an achievement and
further, the responsibility of such crimes was shifted from state to that of an
individual. This paradigm shift from state responsibility to individual
responsibility has largely helped in reduction of war crimes.
'On the positive side of the ledger, the ICC, the International Criminal
Tribunal for the former Yugoslavia, and the International Criminal Tribunal for
Rwanda (ICTR) secured the arrest and conviction of some of the key perpetrators
of organized campaigns of violence against civilians in Africa and the former
Yugoslavia, including former Congolese Vice President Jean-Pierre Bemba and
former Bosnian Serb Republic President Radovan Karadži?. Bemba's conviction also
marked the first successful prosecution of rape before the ICC and the first
application of the principle of commander responsibility for the actions of
Though there exists various apprehensions with regard to the impartiality and
efficiency of these tribunals in dealing with war crimes, there is data which
records a conviction rate of 36%.
The tribunals haven't proved to be entirely efficient in dealing with war
crimes, but with bringing about certain modifications in the functioning of
these tribunals, the idea of world co -operation in bringing criminals of war
crimes to trial will no longer be far-fetched dream.
- Article published in 'The Yale Journal of International Law' by Oona A.
Hathaway, Paul K. Strauch, Beatrice A. Walton, Zoe A. Y.
Weinberg, Vol – 44: 1 2019 Pg. no. 57 – 58.