War Crimes

Part of the problem in defining "war crimes" is that formal declarations of war, which generally preceded hostilities between states in earlier times, no longer occur. Thus there may be some doubt when a "war" as defined by international law is present. In addition, the "wars" of the latter part of the twentieth century were often civil wars (Rwanda, Sudan, Lebanon), guerrilla wars (Colombia, Peru, Nicaragua), and political conflicts (Cambodia, Argentina, Chile), with assistance sometimes given to one group from an outside power (Vietnam, Yugoslavia). The formal treaties and protocols drafted by the major powers were often one step behind in defining the circumstances under which war crimes took place. Thus, the Geneva Conventions of 1949 dealt primarily with conduct during an "international armed conflict." The conventions contained a Common Article 3, which applied to all four treaties and covered "an armed conflict not of an international character" to which certain, but not all, of the prohibitions applied.

Later efforts to take account of the new types of armed conflicts often left significant gaps. Protocol II to the Geneva Convention proposed in 1977 would extend the protections of the 1949 conventions to victims of "internal wars," a broader concept than "an armed conflict not of an international character" (Protocols Additional to the Geneva Convention of August 12, 1949 and Relating to the Protection of Victims of International Non-International Armed Conflicts, June 10, 1977, 1125 U.N.T.S 609 (hereinafter Protocol II)). The definition of "internal wars" was as follows: "It shall apply to all armed conflicts which are not international and which take place in a territory of a high contracting party between its armed forces and dissident armed forces or other organized armed groups, which under responsible command exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations." Therefore, there must be "dissident armed forces" or "organized armed forces" occupying territories in order to satisfy the definition of "internal war" under Protocol II. (The United States has not ratified Protocol II although over 120 states have acceded to it.)

The International Criminal Tribunal for Yugoslavia (ICTY) broadened the predicate for punishing war crimes in its decision in Prosecutor v. Tadic (No. IT-94-1-T (Yugoslavia Tribunal Trial Chamber, August 10, 1995, affd No. IT-94-1-AR 72)). (Yugoslavia Tribunal, Appeals Chamber, 2 October, 1995, Tadic Appeal on Jurisdiction, reprinted at 35 I.L.M. 32 (1996) and appeal on the merits, 15 July 1999, reprinted in 38 I.L.M. 1518 (1999).) The Appeals Chamber held in the jurisdictional appeal that an armed conflict exists (and therefore the four Geneva Conventions apply) "when there is resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state" (par. 70). Broadening the definition found in the Geneva Conventions and Protocol II, the Appeals Chamber of ICTY held that the technical requirements of an international armed conflict need not be present before the rules contained in those provisions can be applied. The court held that persons engaged in organized armed conflicts either of an international or local nature are bound by "Customary Rules of International Human Rights," which can be applied by both local, ad hoc, and international courts in dealing with excesses against civilian groups or enemy soldiers.

In its second decision on the merits, the Appeals Chamber held that the Bosnian Serb militias were acting on behalf of the goals "and shared strategic objects" of the Serbian government in Belgrade (par. 153), even if they were not directly under the control of the Serbian military, thus bringing their actions within the prohibitions of the Geneva Conventions relating to "international armed conflicts."

The Rome Charter of the ICC also broadens the definition of crimes against humanity by encompassing any attack upon a civilian population under the following circumstances: "a course of conduct involving the multiple commission of acts referred to in paragraph 1 [murder, enslavement, deportation, torture, rape, apartheid, disappearances, or other inhumane acts] against any civil population, pursuant to or in furtherance of a State or organizational policy to commit such attack" (Article 7(2)(a)).

There are slight differences between crimes against humanity as defined in the Rome Charter and the statutes creating the international criminal tribunals for Yugoslavia (ICTY) (U.N. Doc. S/PV. 3217 (1993)) and Rwanda (ICTR) (U.N. Doc. S/RES/955 (1994)). The Rome Charter requires "a multiple commission of acts" against civilians, but it contains no requirement that the acts be committed in the context of an armed conflict. Nor does the ICTR statute require any such conflict. The ICTY statute does require an armed conflict before it can exercise jurisdiction, and also demands some kind of discriminatory motive on the part of the perpetrator, a requirement that is not found in the Rome Charter. But all three enactments greatly expand the defined circumstances under which international law against crimes of war can be applied.

In February 2001, a panel of the ICTY found that rape in and by itself could constitute a crime against humanity and found three Bosnian Serb soldiers guilty of enslaving and abusing hundreds of Muslim women from the town of Foca, near Sarajevo, during the Bosnian conflict. They were sentenced to twenty-eight, twenty, and twelve years' imprisonment, respectively (Prosecutor v. Kunarac).