Practice Relating to Rule 156. Definition of War Crimes
Chile’s Code of Military Justice (1925), under the heading “Treason, espionage and offences against the sovereignty and external security of the State”, provides a list of certain crimes directed against specific protected persons and objects, including misuse of the red cross flag and emblem in times of war.
In its decision on annulment in the Víctor Raúl Pinto case in 2007, Chile’s Supreme Court stated:
On 21 November 1947, with Chile in attendance, the [UN] General Assembly, through the International Law Commission as its sub-organ responsible for the enunciation of principles and the proposal of norms in relation to crimes against the peace and security of mankind, formulated the principles of international law recognised by the Charter and judgments of the Nuremberg Tribunal. These principles were adopted in 1950 (A/CN. 4/34) and include the prosecution and punishment of crimes against peace, war crimes and crimes against humanity. Item 6 of these norms points out that the following crimes are punishable under international law:
a) Crimes against peace … ;
b) War crimes: Violating laws and customs of war.
The above mentioned document became the expression of existing international law at the time of its creation and, as such, is in itself a contribution to said law. By virtue of this document recognition was given to the existence of an international custom as an expression of said law, which prohibited such crimes (Hugo Llanos Mansilla: “Teoría y Práctica del Derecho Internacional Público”, Editorial Jurídica de Chile, Santiago, Chile, 1977, page 35).
In order to establish [the] responsibility [of the accused] it suffices to find that he was actively involved in the criminal offence perpetrated during the war or armed conflict, that he did so as a member of a military unit, and that it was done against civilians.
According to the Report on the Practice of Chile, the provisions of Chile’s Code of Military Justice dealing with certain offences directed against protected persons and objects define what the national law “considers to be crimes of war”. The report further states:
This definition predates the Geneva Conventions of 1949 and is fundamentally based on the Law of The Hague that originated in the Peace Conferences of 1899 and 1907 … The definitions laid down by the Code of Military Justice are understood to form part of customary international law.