War Crimes

Question 1

Where can war crimes be found in ICC Statute?

Answer 1

Art 8

Question 2

What’s the main purpose of war crimes?

Answer 2

To prosecute serious violations of customary or treaty law belonging to IHL.

Question 3

Where do war crimes come from?

Answer 3

Jus in bello: Law of armed conflict

Question 4

What do the Hague Conventions do?

Answer 4

Limit the methods and means of warfare, in order to reduce unnecessary destruction and suffering.

Examples:

• Means: certain bullets, chemicals, biological weapons.
• Methods: Using human shield, undermining principle of distinction.

Question 5

What did Geneva Conventions do?

Answer 5

Focus on protecting civilians and others who are not active combatants.

Establishing principle of universal jurisdiction for war crimes.

Question 6

In 1977, what did two additional protocols do?

Answer 6

AP I - IACs, and combined Hague and Geneva laws.

AP II - NIACs.

Question 7

What type of armed conflict can war crimes occur?

Answer 7

Tadic: IAC or NIAC.

An armed conflict exists whenever there:

1) Is armed force between states
2) Or protracted violence between governmental authorities and organised armed groups

Question 8

What are the requirements for war crimes within jurisdiction of ICTY?

Answer 8

Tadic:

1) The violation must infringe a rule of IHL;
2) The rule must be found in customary law or applicable treaty law.
3) The violation must be ‘serious’, in that the rule protects important values and the breach involves grave consequences for the victim.
4) The violation must entail individual criminal responsibility.

Question 9

What is key factor of war crimes?

Answer 9

Need a link to an armed conflict.

Question 10

What articles in IHL relate to international armed conflict?

Answer 10

1) CA 2: ‘all cases of declared war or of any other armed conflict, which may arise between two or more high contracting parties.’
2) AP I, Art 2: ‘situations in CA 2’ and ‘armed conflicts which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.’

Question 11

What articles in IHL relate to internal armed conflict?

Answer 11

1) CA 3: Territory of a member sate and conflict of a non-international character.

Question 12

What are the objective elements of a war crime

Answer 12

• Depends on respective provision (ICTY v ICC etc)
• No authoritative or legally binding list in CL
• But art 8 of ICC Statute is supposed to reflect at least part of existing customary law.

Question 13

What is the problem of having no explicit list?

Answer 13

Principle of nullum crimen sine lege - principle of legality, no retroactive jurisprudence yet could come up with new crimes.

Question 14

What is the subjective element of a war crime?

Answer 14

Art 30 ICC statute: intent and knowledge

Awareness of conflict: perpetrator must be aware of the factual circumstances of the armed conflict.

Wilfulness: some provisions only require wilfulness.

Question 15

How is threshold of armed conflict met? (IAC)

Answer 15

State to state:

• Any resort to force involving military forces

Question 16

How is threshold of armed conflict met? (NIAC)

Answer 16

Internal conflict:

1) The intensity of the conflict
2) The organisation of the parties

Question 17

How was threshold of NIAC elaborated by Tadic?

Answer 17

1) Armed force between states; or

2) Protracted armed violence between governmental authorities and organised armed groups

Question 18

How can intensity be measured?

Answer 18

1) Protracted, rather than sporadic or isolated.
2) Factors include seriousness of attacks, their geographic spread or temporal persistence, the mobilisation of government forces , the distribution of weapons and attention of the UN SC.

Question 19

How is organisation assessed? (Haradinaj)

Answer 19

Factors:

• Command structure
• Disciplinary mechanisms
• Headquarters
• Control of territory
• Access to weapons
• Military training

Question 20

How does AP II create higher threshold of internal armed conflict?

Answer 20

One party must be state and armed group must have control over territory.

However: although treaty law, hasn’t been accepted into customary IL war of crimes as of yet.