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WAR CRIMESWAR CRIMES

Ray MurphyRay Murphy

20122012

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IntroductionIntroduction

• Examining War Crimes as referenced in Article 8 of the ICC Statute

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WAR WAR CRIMES CRIMES ART 8ART 8

• Can be individual or isolated acts- no need to be widespread or systematic (crimes against humanity) and no requirement of special intent (genocide).

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Need for Armed ConflictNeed for Armed Conflict

• Must take place in the context of or be associated with armed conflict.

• Accused aware of factual circumstances that established an armed conflict

Jos Nigeria 2010Jos Nigeria 2010

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No requirement for legal evaluation by perpetrator as to armed conflict

No requirement for awareness of facts that establish character of conflict as international or non-international

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Legal BasisLegal Basis

Common Art 2 GC

• …All cases of declared war or of any other armed conflict which may arise between two or more high contracting parties …

• …All cases of partial or total occupation…

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International Armed International Armed ConflictConflict

• Tadic - ..whenever there is a resort to armed force between states

• Delalic - …any difference arising between two states and leading to intervention of members of armed forces…

• Overall control test

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TadicTadic – war crimes – war crimes

• Must be ‘serious infringement’ ie involve grave consequences for victim/breach of rule protecting important values

• Rule violated must be part of customary/treaty law

• Must entail individual criminal responsibility

Smoke rises from heavy shelling as Smoke rises from heavy shelling as rebels retreat during a battle with rebels retreat during a battle with

Gaddafi's troops outside the town of Gaddafi's troops outside the town of Bin JawadBin Jawad

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1. Grave Breaches of 1. Grave Breaches of the Gthe GC’s, C’s, Geneva IV, Geneva IV, Art. 147Art. 147 – Art 8(2)(a) – Art 8(2)(a)

–Must be in the context of an international armed conflict and victims must be protected persons (see Geneva IV, para. 4).

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Protected Protected persons/objectspersons/objects

• Art 4 GC IV - ‘those who…find themselves…in the hands of a Party to the conflict or Occupying Power of which they are not nationals’

• Tadic – ‘control by this Party over persons in a given territory,…crucial test’

Syria 2012 - The army launched an assault on Syria 2012 - The army launched an assault on opposition strongholds in the city of Homs -reports opposition strongholds in the city of Homs -reports emerged of a humanitarian crisis as the Bab Amr emerged of a humanitarian crisis as the Bab Amr neighbourhood was under siege and shelling for neighbourhood was under siege and shelling for

nearly a monthnearly a month

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2012 Damascus suburbs have been the 2012 Damascus suburbs have been the scene of clashes between troops and the scene of clashes between troops and the

armed opposition – combatants, fighters or armed opposition – combatants, fighters or civilians?civilians?

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Libyan rebels during clashes with army Libyan rebels during clashes with army forces loyal to Muammar Gaddafi on the forces loyal to Muammar Gaddafi on the

outskirts of Bin Jawad 2011outskirts of Bin Jawad 2011

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• Delalic

‘If individuals not entitled to protections of Third Convention…he or she necessarily falls into ambit of Geneva IV, provided Article 4 requirement satisfied’

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Wilful killingWilful killing

• Killed same as caused death/murder

• Can be act or omission

• Intent to kill or cause grevious bodily harm

• Wilful encompasses reckless acts

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19/04/2319/04/23 2020

04/19/23 Dermot Groome: Evidence in War Crimes Cases

20

Military PhotographersMilitary Photographers

Boy who starved to death

Photo by Armin Wegner

People liviing in the streets

Photo by Armin Wegner

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Art. 8(2)(a)(ii) Torture or Art. 8(2)(a)(ii) Torture or inhuman treatmentinhuman treatment

• ICC incorporates purposive element of Torture Convention

• No need for official capacity

• Deliberate act or omission

• No precise threshold level of suffering or pain

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Art. 1 - For the purposes of CAT, the Art. 1 - For the purposes of CAT, the term "torture" means.. term "torture" means..

• any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person

• for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person …,

• or intimidating or coercing him or a third person,

• or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

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Inhuman treatmentInhuman treatment

• Severe often used to indicate gravity of pain

• It is purposive element of war crime of torture that distinguishes the two offences – departure from Ad Hoc Tribunals where severe pain indicated torture and serious pain indicated inhuman treatment

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Wilfully causing great Wilfully causing great suffering/serious injurysuffering/serious injury

• Distinguished from torture primarily on basis that act or omission need not be for prohibited purpose

i.e. no purposive requirement – Delalic case

• Act or omission must be intentional

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Art 8(2)(a)(iv) Extensive Art 8(2)(a)(iv) Extensive destruction of propertydestruction of property

• Not justified by military necessity

Covers only measure that are lawful in accordance with laws of war

• Such property protected by one or more Geneva Convention of 1949

Thus this war crime only covers property specifically protected

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Occupied territoryOccupied territory

• Blaskic case

To constitute a grave breach, the destruction unjustified by military necessity must be extensive, unlawful and wanton

Gaza 2009Gaza 2009

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Art. 8(2)(a)(vi) wilful Art. 8(2)(a)(vi) wilful deprivation of fair trialdeprivation of fair trial

• Right to counsel• Right to prepare defence• To be informed of charges• Independent and impartial

court• Right to interpreter• Length of trial a factorSee judicial guarantees in

Geneva Conventions/Additional Protocols

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Journalists - PhotographersJournalists - Photographers

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2. International Law2. International Law ––

Art. 8(2)(b)Art. 8(2)(b)Other serious

violations of the laws and customs applicable in

international armed conflict,

within the established framework of international law.

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Limited to international armed conflict. Concerns the laws for the conduct of hostilities (Hague law), victims need not be ‘protected persons;’ also aimed at protecting combatants.

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Art 8(2)(b)(i) Art 8(2)(b)(i)

• Intentional directing attack against civilians not taking direct part in hostilities

• No result required

• Prohibition is absolute but….

• Art 19 GC IV

• Collateral damage not unlawful

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Part II: Investigation of Senior Officials

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Art 8(2)(b)(ii)Art 8(2)(b)(ii)

• Intentionally directing attack against civilian objects

• No result required

• Art. 19 GC IV

• Military objective Art 52 AP I -Nature, location, purpose or use make effective contribution

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Art 8(2)(b)(iii) Attacks on UN Art 8(2)(b)(iii) Attacks on UN and humanitarian workers and humanitarian workers

etcetc

• No result required

• Ignorance of law no excuse

• 1994 Convention on Safety of UN Personnel

• Complex provisions

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Art 8(2)(b)(iv)Art 8(2)(b)(iv)

• Intentionally launching attack in the knowledge that it will cause incidental loss of life to civilians or damage to civilian objects or widespread, long-term and severe damage to natural environment which is clearly excessive in relation military advantage

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Art 8(2)(b)(vii) improper Art 8(2)(b)(vii) improper use of flag and use of flag and

emblemsemblems• War crime of improper use of

flag of truce

• …flag, insignia, or uniform of hostile party or United Nations

• …distinctive emblems of Geneva Conventions

• Improper implies contrary to international law

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• Perpetrator need only be aware that death could occur - Art 30

• Perfidy

• Use of enemy uniforms during attack prohibited – use at other times not forbidden

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ContdContd

• Proportionality principle

• Evaluation must be made before attack

• Objective test – court will respect reasonable judgements made in good faith – forseeabiliy test

• Broader purpose of military operation taken into account

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Art8(2)(b)(xxii) – Sexual Art8(2)(b)(xxii) – Sexual CrimesCrimes

• Rape

• Sexual slavery

• Enforced prostitution

• Forced pregnancy

• Enforced sterilisation

• Any other form of sexual violence constituting grave breach of GCs

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RapeRape

• Case law not uniform

• Coercive circumstances do not need show of physical force

• No definition of rape under IHL

• Protection under Art 27(2) GC IV, Art 75(2)(b)AP I and Art 76(1) API

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Rape - casesRape - cases

• Akayesu – cannot be captured by mechanical description

• Delalic

• Furujdzija – sexual penetration/by coercion or force or threat of force

• Kunarac – emphasised issue of consent

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Potential PerpetratorsPotential Perpetrators

• Military or similar personnel

• Members of Government – Tokyo,

Failure to prevent…election to continue in government

• Party officials and administrators

Civilians – Zyklon B case

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3. Offences in non-3. Offences in non-international armed international armed

conflictconflict – 8(2)(c) – 8(2)(c)

• Governed by Common Article 3 of the Geneva Conventions and Additional Protocol II of 1977.

• Common Article 3 crimes listed in para. 8 (c) must be must be committed against ‘persons taking no active part in hostilities.... ‘

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Article 8(2)(c) …. non- Article 8(2)(c) …. non- international conflictinternational conflict

• Those ‘protected’ are intended to be less ambiguous than in Common Art 3 of Geneva Conventions

• Perpetrator can be civilian or military

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Art 8(2)(d) reiterates the distinction between internal disturbances and internal conflict

Art 8(2)(e) offences are largely drawn from Protocol II - elements of most crimes identical to that for international armed conflict

Art 8(2)(f) seeks to distinguish between Common Article 3 situations and those where Protocol II may apply i.e. protracted internal armed conflict.

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Specific OffencesSpecific Offences

• Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture

• Committing outrages upon personal dignity, in particular humiliating and degrading treatment

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• The taking of hostages

• The passing of sentences and the carrying out of executions without due process