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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 l.jpg

International Law Unit 10: War Crimes

Prof. Fred Morrison

Fall 2005


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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


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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


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War Crimes: I. History and Introduction


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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


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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


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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


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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


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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


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War crimes: Genocide

  • Genocide Convention, 1948

    • Really a human rights convention; applies also outside of the war context

War Crimes


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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


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War crimes: Limiting weapons

  • Small explosive projectiles

  • Atomic

  • Biological

  • Chemical

  • Land Mines

  • Child soldiers

  • Mercenaries

War Crimes


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War crimes trials

  • Andersonville, 1865

  • The Treaty of Versailles

    • Provisions about the Kaiser

    • The Leipzig trials

  • Nuremberg and Tokyo, 1946

  • Lieut. Calley

War Crimes


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War crimes trials: recent

  • Yugoslav tribunal

  • Rwandan tribunal

  • Sierra Leone tribunal

  • International Criminal Court

    • Referral of charges on Dafur

War Crimes


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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


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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


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II. Treaties & Customary Law


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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


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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


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Treaties and Customary Law

  • Customary Law

    • Created by long practice accepted as law

    • Binding on all States

    • Less precise statement of rules

War Crimes


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Types of treaties

1. Classic war crimes treaties

  • Hague Conventions and Regulations

  • Geneva Conventions

  • Geneva Protocols

    2. Some special treaties

  • Genocide

  • Torture

War Crimes


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Types of Treaties

3.Armaments/Disarmament treaties

  • Atomic

  • Biological

  • Chemical

  • Land Mines

  • Child Soldiers

  • ICBM

War Crimes


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Types of treaties

4. Relationship to general human rights treaties:

  • Relationship of “human rights law” to “humanitarian law”

War Crimes


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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


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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


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Substantive Treaties: Part 1Classic War Crimes Treaties

  • Hague Conventions, 1907

  • Geneva Conventions, 1949

  • Geneva Protocols, 1977

War Crimes


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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Hague Convention:Is it customary law?

  • Many provisions are now viewed as the foundation of customary law in the field.

War Crimes


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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


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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


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Geneva Conventions

  • Based on principle of protectingclasses of individuals

  • They introduce the beginnings of limited individual responsibility

War Crimes


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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


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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


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Geneva Conventions:What conflicts covered

  • Must distinguish between—

    • Full obligations

    • Limited obligations of Common Article 3

War Crimes


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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


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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


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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


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Limited obligations in non-international conflict

  • Common article 3 extends limited obligations to persons involved in “conflict not of an international character”

War Crimes


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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


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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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Geneva POW Convention:Specific Obligations

  • Identification

    • Name, rank, date of birth, serial number (art 17)

  • Quarters, food, clothing (arts. 25-28)

  • Medical attention (arts. 29-32)

  • Chaplains (arts. 33-38)

War Crimes


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Geneva POW Convention:Specific Obligations

  • Compulsory labor (arts. 49-57)

  • Financial rights (arts. 58-68)

  • Communications (arts. 69-77)

  • Communications with Red Cross (arts. 78-81)

War Crimes


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Geneva POW Convention:Specific Obligations (cont’d)

  • Discipline [not to exceed 30 days] (arts. 82-98)

  • Juridical Proceedings (arts. 99-108)

  • Release (arts. 109-119)

  • Information Bureaus, etc., (arts. 120-125)

War Crimes


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Geneva POW Convention:Enforcement

  • Through military orders and other measures to suppress acts contrary to the Convention (art. 129)

  • Through criminal legislation punishing “grave breaches” (art. 129)

  • “Grave breaches” include acts of “wilful killing, torture or inhuman treatment, … or wilfully depriving a prisoner of war of the rights of fair and regular trial ….” (art. 130)

War Crimes


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Geneva POW Convention:Supervision

  • Role of the “Protecting Power”

    • Frequently the ICRC is designated as the protecting power

War Crimes


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Geneva Civilian Convention:To Whom Does It Apply

  • “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” (art.4)

  • But not—

    • Citizens of that country

    • Citizens of a 3rd country with normal diplomatic relations

    • Those protected by Geneva 1, 2, or 3

War Crimes


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Geneva Civilian Convention:Substantive Provisions

  • Protection of civilians (arts.27-46)

    • No pillage, reprisals, hostages (art.33)

  • Regulation of occupied territories (arts.47-78)

    • Occupying Power may create security areas (art. 49)

    • Destruction of private property usually prohibited (art.53)

  • Regulation of internment (arts. 79-135)

    • In general, these parallel the POW provisions

War Crimes


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Geneva Civilian Convention:Enforcement

  • Each Party to enact laws to punish “grave breaches” and to search for and prosecute those who commit those crimes (art. 146)

War Crimes


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Geneva Civilian Convention:Supervision

  • Protecting Power provides supervision

    • Frequently this is the Red Cross

War Crimes


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What did this leave out?

  • Internal conflicts

    • Only common article 3

  • Means of conducting war

    • Hague and armaments conventions

  • Conflicts not controlled by a State

    • Terrorism

War Crimes


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Geneva Protocols of 1977

  • 2 protocols (additional provisions) to the Geneva Conventions:

    • First Protocol incorporates (and updates) many of the provisions of the Hague Conventions

    • Second Protocol deals with “conflicts not of an international character”

War Crimes


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Geneva Protocol I:Substantive Provisions

  • Relaxation of requirements of uniform

  • Exclusion of “mercenaries” from protection

  • Specificity in protection of certain areas from attack

War Crimes


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Geneva Protocol II:Substantive Provisions

  • Deals with “wars not of an international character”

  • More specific protections than those in Common Article 3, but not as fulsome as those of the POW Convention

War Crimes


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Customary International Humanitarian Law

  • The Conventions are directly applicable only between parties, BUT—

  • Customary International Law has developed that incorporates many of their provisions, and

  • Some subsequent instruments (like the Charter of the International Criminal Court) incorporate them by reference

War Crimes


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Genocide Convention

  • Adopted in 1948

  • Prohibits “any of the following acts committed with intent to destroy, in whole or in party, a national, ethnical, racial or religious group, as such:…”

  • Parties must enact laws punishing genocide.

War Crimes


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Torture Convention

  • Adopted by UN in 1984

  • Broadly ratified

  • Applies during a state of war (art.2(2))

War Crimes


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Torture elements

  • Intentional infliction of severe pain or suffering

  • For specified purposes

  • By (or with the consent or acquiesence of) a public official

War Crimes


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Human rights law

  • Universal Declaration

  • Civil and Political Covenant

  • Instruments to protect

    • Against racial discrimination

    • Women

    • Children

  • And other instruments

War Crimes


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Interplay of Humanitarian Law and Human Rights Law

  • Humanitarian law is primary in the field of regulating conduct curing conflict

War Crimes


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Limits on Weaponry

  • Atomic

  • Biological

  • Chemical

  • Land Mines

War Crimes


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Limits on Personnel

  • Child soldiers

  • Mercenaries

War Crimes


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Some modern issues

  • Bosnia, Kosovo

  • Rwanda

  • Darfur

War Crimes


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Some more issues

  • 9/11

  • Abu Gharib

  • Saddam’s photos in the NY Post

  • Guantanamo

  • [Failed] car bombers

War Crimes


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Questions for these issues

  • Is the conflict covered?

  • Is the subject (person) protected?

  • What are the terms of the limitation?

War Crimes


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