The rules of war and war crimes

The international law and framework on war crimes needs a major overhaul if culprits such as those in the latest Israel–Palestine flare-up have to be held accountable.

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"We the peoples of the United Nations are determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind."

Excerpt from Preamble to the United Nations (UN) Charter

Source: United Nations

Survivors of World War I and World War II got together in San Francisco in 1945 to establish the foundational treaty of the UN— the UN Charter.

The UN Charter does not specify a definition of war but addresses the use of force by States. Apart from the Preamble, Article 2(4) of the charter prohibits "the threat or use of force against the territorial integrity or political independence of any State".

While there is a general prohibition on the use of force, there are exceptions for "individual or collective self-defence" under Article 51, and actions authorised by the UN Security Council (UNSC).

The exceptions are commonly used by member States to justify conflicts. This includes the use of force by Israel in Gaza and the West Bank as self defence, after the October 7 attack by Hamas.

In such cases, the UN reserves the right to take action "as it deems necessary in order to maintain or restore international peace and security".

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Notably, the UN Human Rights Council (UNHRC) instituted an Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel in May, 2021.

The UNHRC also cooperates with and supports the work of the International Criminal Court (ICC), where the Office of the Prosecutor has been investigating the Palestine situation since 2021.

On October 10, the commission declared that there was clear evidence that war crimes may have been committed in the latest explosion of violence in Israel and Gaza, and all those who have violated international law and targeted civilians would be held accountable for their crimes.

Similarly, the UN's Independent International Commission of Inquiry on Ukraine found that "Russian authorities committed a wide range of violations of international human rights law and international humanitarian law in many regions of Ukraine and in the Russian Federation. Many of those amount to war crimes" including "torture, wilful killings, rape and other sexual violence, as well as the deportation of children".

It also documented a small number of war crimes committed by Ukrainian armed forces.

What are war crimes?

Although the UN Charter is binding upon all UN member States, it is not the only instrument governing international law on war. The broader international law on war includes the prosecution and punishment of individuals who commit serious infringements of the laws and customs of war.

Commonly amounting to war crimes, such violations are typically committed during armed conflicts which may be international like the Russia–Ukraine situation, or non-international like the Syrian Civil War.

Victims of armed conflicts, including civilians, prisoners of war (PoWs), and the wounded, are primarily protected by the Geneva Conventions of 1949 and their Additional Protocols (Geneva Conventions). Considered a primary source of international law, the Geneva Conventions also establish a prohibitive legal framework against war crimes.

This framework includes deliberate attacks on civilians, torture, sexual abuse and rape, forced displacement and the use of prohibited weapons. Those responsible for such crimes can be held individually accountable.

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In addition to the UN Charter and the Geneva Conventions, the Rome Statute established the ICC, a permanent international criminal court. It has the authority to prosecute individuals responsible for war crimes, crimes against humanity, genocide and criminal aggression.

What is war?

Historically, States would formally declare war on each other, but in modern times, armed conflicts can arise without a formal declaration. With the introduction of Common Articles 2 and 3 in the Geneva Conventions in 1949, international humanitarian law (IHL) is applicable irrespective of a formal war declaration by one or both of the concerned States.

In fact, the word 'war' stands replaced in international law. The term 'international armed conflict' is used when referring to a war between two or more States. 'Non-international armed conflict' refers to internal or civil wars, in accordance with the universal nature of the Geneva Conventions and Additional Protocols (AP).

The classification of a conflict determines the applicable legal framework on the conduct of hostilities, the protection of civilians, and others like PoWs. It also affects the jurisdiction of international courts and tribunals, in prosecuting war crimes and other serious violations of IHL.

Situations qualify as an "armed conflict" beyond a certain threshold of violence. Riots, isolated and sporadic acts of violence are not considered armed conflicts under AP II.

The identification of parties to a conflict recognises the States, non-State armed groups, or a combination who are legitimate actors in a conflict.

The presence of the armed groups, including the occupying State's military, is an important indicator of a party's control over a certain territory, but by no means definitive.

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While Israel has disputed its status as the occupying power in Gaza after withdrawing its troops from the area in 2005, the UN and other international bodies hold Israel responsible for Gaza, rendering its claim of self-defence questionable.

Often, conflicts take on a more complicated character such as in Syria which is involved in both, international and non-international armed conflicts.

Source: UNHRC

Customary international law refers to the body of principles and rules recognised as legally binding over time based on practices and opinions of States, and the decisions of international courts and tribunals. It fills crucial gaps left by treaty law in today's armed conflicts.

Some key principles that constitute customary rules of war have been codified in treaties like the Hague Conventions of 1899 and 1907.

What rules apply in armed conflict?

Source: ICRC

An early attempt at establishing modern rules of war, the Hague Conventions prohibited weapons like poison, and laid down rules for the protection of civilians and infrastructure.

Now part of customary international law, the provisions of the Hague Conventions bind all States without exception. The Nüremberg International Military Tribunal (Nuremberg Tribunal) famously stated that land warfare provisions of the Hague Conventions were recognised "by all civilised nations and were regarded as being declaratory of the laws and customs of war".

The weapons-related provisions of the Hague Conventions stand modified thanks to myriad newer conventions and treaties that cover chemical weapons, biological weapons, nuclear non-proliferation, and conventional weapons. These treaties are not as uniformly accepted and enjoy different levels of support from sovereign States.

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The four treaties comprising the Geneva Convention, as ratified by 196 sovereign states, stemmed from the efforts of the International Committee of the Red Cross (ICRC), which provides medical care to all affected individuals based on seven fundamental principles. 

Source: IFRC

The first two Geneva Conventions (of 1864 and 1906) addressed the immediate need for the protection and medical care of wounded and sick military personnel on land and sea, respectively.

The Third Geneva Convention (1929) laid down that PoWs should be provided humane treatment, access to medical care, and the right to correspond with their families.

Violations of the convention are considered serious breaches, as was the case in the ongoing war between Russia and Ukraine, where both sides were accused of mistreating PoWs, potentially amounting to war crimes, and were required to allow the ICRC to visit PoW camps as guaranteed under this treaty.

Propelled by the dire condition of civilians after World War II, the Fourth Geneva Convention (1949) focused on civilian rights, prohibiting violence, forced displacement and inhumane treatment. It also addresses the responsibilities of occupying powers in territories they control, and prohibits attacks on civilians, hospitals and refugee camps.

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Breaches may include denying civilians in a war zone access to adequate basic supplies like food, water and medicines, as is the case in Gaza, where Israel as the occupying power is accused of war crimes related to this treaty. 

Source: UN News

Another broad instrument of international law, the UN Charter, is followed by all member States who are part of the General Assembly. As the world's largest inter-governmental organisation, the UN is populated by 193 sovereign States, and the two non-member observer States of the Holy See and State of Palestine.

Thus, wars are impacted by the UN Charter, and other instruments. For instance, Chapter VII of the UN Charter identifies the powers and responsibilities of the UN Security Council (UNSC) in determining and addressing threats to peace, breaches of peace and acts of aggression.

Once it identifies a threat or act of aggression, it may choose from a range of military and non-military measures, intended to exert pressure on the parties involved and encourage peaceful resolutions. Non-military actions under Article 41 include economic sanctions, diplomatic efforts, arms embargoes and travel restrictions.

Article 43 provides for peacekeeping operations and missions, with the aim of facilitating peaceful resolutions, monitoring ceasefires and protecting civilians, through forceful means when required, even as contemporary conflicts become increasingly complex.

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The UNSC may authorise use of force and take collective military action for severe cases where non-military measures prove insufficient through Article 42. However, it may be vetoed or blocked by any of the five permanent members of the UNSC.

As demonstrated when Russia blocked the 2022 resolution against the war in Ukraine, the UNSC often fails in reaching a resolution. In such cases the UN General Assembly (UNGA) may step in and adopt a legally non-binding resolution, such as calling for immediate military withdrawal and cessation of hostilities in the case of Ukraine.

Most recently, the UNGA adopted a resolution on October 26 this year, calling for an "immediate, durable and sustained humanitarian truce" between Israel and Hamas in Gaza, after the UNSC failed multiple times. It also demanded for "continuous, sufficient and unhindered" supply of lifesaving provisions and services for trapped civilians.

While hailed as a small victory during Gaza's darkest hours, the UNGA's position has been criticised by pro-Israel members leading to assertions that the UN lacks legitimacy. When the international community acknowledges and addresses an armed conflict in this manner, it lends legitimacy to actions taken in support of its resolutions.

How are international laws on war implemented?

The limitations of the Nuremberg Tribunal created the exigency for an international court. The tribunal enjoyed popular support as the majority of Germans it tried were convicted, and it exposed the extent of Nazi violations.

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It was also controversial. On the one hand it imposed retroactive justice upon the accused, by the four 'victors' of World War II, including the United States (USA) and Russia. On the other hand, thousands of "silent bystanders" and members of the Nazi regime went unpunished.

Both Ukraine and Russia have relied on Nuremberg Tribunals to justify their role in the conflict. However, contemporary war-related crimes, prohibited under IHL are usually prosecuted by the ICC.

Established by the Rome Statute, the ICC determines the severity of crime, which may occur during war or peace.

Its jurisdiction ranges from genocide, which aims at destroying entire populations (Article 6); crimes against humanity, which are widespread or systematic (Article 7); war crimes, which are part of a policy, plan or large-scale in nature (Article 8); and, to a limited degree, the crime of aggression (Article 8b was adopted in 2010 at Kampala).

The ICC's jurisdiction is complementary to and limited by national courts, applicable to instances when the latter are unable or unwilling to prosecute war crimes.

The ICC's jurisdiction may also be established under Article 12(3), as done by Ukraine in 2014 against Russia. A similar declaration under Article 12(3) submitted to the ICC by Palestine extended its jurisdiction over atrocities committed in Gaza, the West Bank and East Jerusalem.

However, Israel and the US, which are not ICC members, have rejected the investigation in Palestine. India, China and Russia also do not recognise the ICC's jurisdiction. Nor does Syria, where violence is escalating even now. Nevertheless, alternatives exist.

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Thus, Syria, as a party to the UN Convention Against Torture, which enjoys universal application, has been accused of use of torture before the UN's International Court of Justice (ICJ). The ICJ began hearings on the watershed case instituted by the Netherlands and Canada on October 10.

Who is held accountable?

In situations where conflicts are ongoing, access to evidence and witnesses is limited, making investigations complex and challenging. International organisations, like the UN, often play a role in documenting and investigating war crimes. They may establish commissions of inquiry or fact-finding missions to gather evidence and report on alleged violations.

As noted in a recent report of the Independent International Commission of Inquiry on the Syrian Arab Republic submitted to the UNGA, "[G]rave violations of human rights and humanitarian law continued across the Syrian Arab Republic, in government-held areas and areas controlled by non-State actors, during the first half of 2023.

"The humanitarian and economic situation continued to deteriorate, with over 15 million Syrians in need of humanitarian assistance… In the northeast, an estimated 62,000 Syrian and foreign men, women and children remained in detention camps and prisons, while child recruitment continued."

Political considerations and lack of resources also hinder the pursuit of justice. Legal experts, courts and tribunals do the vital work of interpreting and applying relevant laws based on the existence, nature and impact of armed conflicts.

Some countries lawfully exercise universal jurisdiction over war crimes committed anywhere in the world, regardless of the nationality, and are obliged to prosecute war criminals to ensure that there is no safe haven for them. It is considered a viable pathway for justice in Syria, such as successful prosecutions by German criminal courts.

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The widely recognised principle of individual criminal responsibility for war crimes holds individuals who commit war crimes personally accountable for their actions. This ensures that there is no excuse for war crimes regardless of the official position or rank of perpetrators, even if they acted on behalf of a State or under orders.

According to the concept of command responsibility, military commanders and superiors are held accountable if they knew or should have known about the crimes and failed to take necessary and reasonable measures to prevent or punish them.

While the ICC does not have jurisdiction over war crimes committed in Russia by Russian nationals, it does have jurisdiction over atrocities in Ukraine, irrespective of who committed them. This has facilitated warrants by the ICC and the international recognition of crimes attributed to the Russian President and his accomplices against Ukraine since 2013.

States are responsible for war crimes committed by their officials or within their territories and have an obligation to prevent them, investigate and prosecute those responsible, and provide reparations to victims— or face consequences.

In some cases, post-conflict countries have established transitional justice mechanisms to address past war crimes and human rights abuses. Truth commissions are a platform for victims to share their experiences, uncover the truth, and facilitate the peaceful process of healing, justice and reconciliation.

They also shed light on situations involving systematic violations on a mass scale. Some notable examples of truth commissions include those of East Timor, Guatemala, Rwanda and South Africa.

Although such a mechanism has been proposed for Israel and Palestine, it remains an academic point in current circumstances.

At the same time, lawfully holding war criminals accountable reflects the global community's commitment to the principles of humanity and justice, even in times of conflict. It reminds the world of the possibility of peace, even in dire circumstances.