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International Law Unit 10: War Crimes

International Law Unit 10: War Crimes. Prof. Fred Morrison Fall 2005. Outline of the Presentation (Morning Presentation). War Crimes Historical development Treaty law and customary law Relevant treaties Hague and Geneva Conventions and Protocols Arms limitation treaties

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International Law Unit 10: War Crimes

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  1. International Law Unit 10: War Crimes Prof. Fred Morrison Fall 2005

  2. Outline of the Presentation(Morning Presentation) • War Crimes • Historical development • Treaty law and customary law • Relevant treaties • Hague and Geneva Conventions and Protocols • Arms limitation treaties • Anti-aggression rules • Customary law War Crimes

  3. Outline of the Presentation(Afternoon presentation) • War crimes procedures • Prosecutions within own forces • Military commissions • Civilians and civilian proceedings • International proceedings • Nuremberg • Yugoslavia, Rwanda • Sierra Leone, Cambodia • The International Criminal Court War Crimes

  4. War Crimes: I. History and Introduction

  5. War crimes: the Origins • Middle Ages: the concept of chivalry • War as an art form • The decline of chivalry • Crusades: War with the Infidel • Reformation: Loss of common bond • Rise of nationalism: State as ultimate • Changes in weaponry War Crimes

  6. War crimes: Emergence of the modern concept in Europe • Europe, 1859 (Battle of Solferino) • The role of Henri Dunant • Formation of a private Swiss organization, which later (1876) became the International Committee of the Red Cross • Original Geneva Convention(1864) War Crimes

  7. War crimes: Emergence of the modern concept in the U.S. • The American Civil War (1861-1865) • The role of Francis Lieber • Lincoln’s General Order No. 100: “Instruction for the Government of the Armies of the United States in the Field” War Crimes

  8. War crimes: Development of the modern concept • Hague Conferences, 1899 and 1907 • Fyodor Fyodorovich Martens, Russian diplomat • Hague Conventions • Convention IV on the Laws and Customs of War, and accompanying Regulations • Regulations, Art. 22: “The right of belligerents to adopt means of inuring the enemy is not unlimited.” War Crimes

  9. War crimes: Making aggressive war illegal • Limits on the use of force • League of Nations Covenant, 1919 • Pact of Paris, 1928 • United Nations Charter, 1945 War Crimes

  10. War crimes: Genocide • Genocide Convention, 1948 • Really a human rights convention; applies also outside of the war context War Crimes

  11. War crimes: Codifying what is allowed and prohibited • Geneva conventions, 1949 • I. Wounded and Sick • II. Shipwrecked • III. Prisoners of War • IV. Civilians • Geneva protocols, 1977 • I. Protection of Victimes • II. Non-international Conflicts War Crimes

  12. War crimes: Limiting weapons • Small explosive projectiles • Atomic • Biological • Chemical • Land Mines • Child soldiers • Mercenaries War Crimes

  13. War crimes trials • Andersonville, 1865 • The Treaty of Versailles • Provisions about the Kaiser • The Leipzig trials • Nuremberg and Tokyo, 1946 • Lieut. Calley War Crimes

  14. War crimes trials: recent • Yugoslav tribunal • Rwandan tribunal • Sierra Leone tribunal • International Criminal Court • Referral of charges on Dafur War Crimes

  15. War crimes:Some important influences • Changes in weaponry • Greater destructive capability • Changes in civilian involvement • “Total war” • Changes in communication • The “CNN effect” War Crimes

  16. Interplay of Humanitarian Law and Human Rights Law • Humanitarian law • Law regulating the conduct of armed conflict • Human rights law • Law regulating the treatment of individuals by governments War Crimes

  17. II. Treaties & Customary Law

  18. Treaties and Customary Law • Treaties • Established by signature and ratification (or accession or acceptance) • Binding only on parties • Binding only in their own terms War Crimes

  19. Bibliographic note • For easy access to information about humanitarian law, go to the web site of the International Committee of the Red Cross: www.icrc.org • For texts, etc., of treaties, go to www.icrc.org/ihl War Crimes

  20. Treaties and Customary Law • Customary Law • Created by long practice accepted as law • Binding on all States • Less precise statement of rules War Crimes

  21. Types of treaties 1. Classic war crimes treaties • Hague Conventions and Regulations • Geneva Conventions • Geneva Protocols 2. Some special treaties • Genocide • Torture War Crimes

  22. Types of Treaties 3. Armaments/Disarmament treaties • Atomic • Biological • Chemical • Land Mines • Child Soldiers • ICBM War Crimes

  23. Types of treaties 4. Relationship to general human rights treaties: • Relationship of “human rights law” to “humanitarian law” War Crimes

  24. Questions to ask about treaties 1. How many parties? Is it broadly accepted? 2. Are its terms also customary law? 3. What conflicts are in fact covered? • Are the participants parties? • Is the conflict “international”? • Conflicts with non-signatory parties? War Crimes

  25. Questions to ask about treaties (cont’d) 4. Who is protected? 5. What are substantive obligations? 6. What are obligations on the parties to to enforce the provisions? 7. Have the treaty provisions become customary law War Crimes

  26. Substantive Treaties: Part 1Classic War Crimes Treaties • Hague Conventions, 1907 • Geneva Conventions, 1949 • Geneva Protocols, 1977 War Crimes

  27. Hague Convention and Regulations • Adopted 1907 • Only 35 parties; mostly European and Latin American • Nevertheless forms the basis of much of modern humanitarian law • Relatively brief War Crimes

  28. Hague Convention • It is one of a series of conventions proposed by the Hague Conferences, regulating such topics as: • The formalities of declaring war • The working of prize courts • Maritime warfare and the laying of marine mines War Crimes

  29. Hague Convention • Only applies if “all belligerents” are parties to the Convention (Conv.art.2) • Hence it only applies to international conflicts • Does not apply at all if any party to the conflict is not a party to the Convention • Actual rules contained in its “Regulations” War Crimes

  30. Hague Convention:Substantive provisions • Primarily directed at means of conducting armed conflict • Protection of POWs and of civilians has been superseded by other agreements War Crimes

  31. Hague Convention:Substantive provisions • Applies to armies and also to militia and volunteer corps, provided that— • Commanded by a person responsible for his subordinates • Fixed distinctive emblem recognizable at a distance • Carry arms openly • Conduct their operations in accordance with laws of war (Reg.art.1) • Also applies to civilians who organize spontaneously to resist invasion (Reg.,art.2) War Crimes

  32. Hague Convention:Substantive provisions • Some provisions are quaint: • Provisions about parole release (R.art.9) • Officers continue to be paid (but by the captor(!!)) (R.art.17) War Crimes

  33. Hague Convention:Substantive provisions • The Martens clause: The right of belligerents to adopt means of injuring the enemy is not unlimited (Reg.art.22) War Crimes

  34. Hague Convention: Subtantive Provisions • Prohibitions (Reg.art.23) • Poison or poisoned weapons • Kill or wound treacherously • Kill or would those who have surrendered • Declare that no quarter will be given • Use arms that cause unnecessary suffering • Misuse flags (truce, national, Red Cross) • Unnecessarily destroy enemy property • Abolish rights of enemy in national courts • Require enemy nationals to serve in army War Crimes

  35. Hague Convention:Substantive provisions • Other prohibitions • Attack on undefended cities (Reg.art.25) • Qualified protection of churches, art, science, charitable property, historic monuments, hospitals (Reg.art. 27) • Pillage (Reg.art.28) • Special rules for spies (Reg. art. 29-31) War Crimes

  36. Hague Convention:Substantive provisions • Rules relating to occupation of territory • Restore peace and order, respecting existing laws of the territory (Reg.art.43) • Private property protected (Reg.art.46) • Occupation authorities have only right of usufruct of public buildings (Reg.art.55) War Crimes

  37. Hague Convention:Remedial provisions • Remedy: Offending State must pay compensation after the war (Conv.art.3)! • Offending State responsible for all persons forming part of its armed forces • Note: A State-based system, not an individual responsibility system War Crimes

  38. Hague Convention:Is it customary law? • Many provisions are now viewed as the foundation of customary law in the field. War Crimes

  39. Hague ConventionSome thoughts • How does it deal with revolutions and “popular movements”? • Does it assume that States can control everything within their borders? • Is it relevant given modern technology? War Crimes

  40. A trip along the Rhine:From the Hague to Geneva • For the Hague (1907) to Geneva (1949) two World Wars were fought; many other conflicts; many revolutions • These were under Hague rules and the older forms of the Geneva conventions • Hague relates mainly to conduct of war • Geneva relates mainly to protecting people • Beginnings of prohibitions on use of force • League of Nations • Pact of Paris War Crimes

  41. Geneva Conventions • Based on principle of protectingclasses of individuals • They introduce the beginnings of limited individual responsibility War Crimes

  42. Geneva Conventions of 1949 • 4 Geneva Conventions • Wounded • Wounded and shipwrecked at sea • Prisoners of war • Civilians • Some provisions are the same in all 4 • Common articles 1-3 War Crimes

  43. Geneva Conventions • Adopted 1949, under the auspices of the International Committee of the Red Cross • 190 parties, almost universally adopted • Provides the modern foundation for humanitarian law War Crimes

  44. Geneva Conventions:What conflicts covered • Must distinguish between— • Full obligations • Limited obligations of Common Article 3 War Crimes

  45. Geneva Conventions:Full obligations • Conventions apply • As between parties to it, even if other combatant States are not parties • As between combatants, even if not parties, if they accept and apply it • Even if there is no formally declared war (Convs.common art.2) War Crimes

  46. Geneva Conventions:To Whom Do They Apply • POW Convention • Armed forces • Militias and volunteer corps, if— • Commanded by a person responsible • Fixed distinctive sign recognizable at distance • Carrying arms openly • Conducting operations in accord with law of war • Contractors • Civilians who take up arms on attack, carry them openly, and respect laws of war War Crimes

  47. Geneva POW Convention:To Whom Does It Apply • Civilian Convention • Any person who finds himself in the hands of a party to the conflict (art.4), but not • Nationals of that Part • Nationals of a State with which that Party has friendly relations • Persons detained under Geneva 1, 2, or 3 • Spies and saboteurs (art.5) War Crimes

  48. Limited obligations in non-international conflict • Common article 3 extends limited obligations to persons involved in “conflict not of an international character” War Crimes

  49. Geneva POW ConventionSubstantive Obligations • A belligerent falling into the control of the enemy is a POW “until such time as as their status has been determined by a competent tribunal.” (Conv3,art.5,para.2) War Crimes

  50. Geneva POW Convention:Substantive Obligations • General principles and detailed and specific obligations • General obligation: • “Prisoners of war must at all times be humanely treated.” (Conv3.art.13) • “Prisoners of war are entitled in all circumstances to respect for their persons and their honour” (Conv.3.art.14) War Crimes

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