Practice Relating to Rule 156. Definition of War Crimes
According to the Military Manual (1993) of the Netherlands, a war crime is a violation of the rules of the law of war. The manual uses the term “war crime” both in a broad and in a narrow sense. It explains that war crimes in the broad sense include violations of the laws and customs of war, crimes against peace and crimes against humanity. In the narrow sense, they are defined as violations of the laws and customs of war. As to the difference between war crimes and crimes against humanity, the manual states that crimes against humanity can also be committed outside the context of armed conflict and can be directed against one’s own population. Furthermore, the manual recalls that the 1949 Geneva Conventions and the 1977 Additional Protocol I provide for the distinction between (ordinary) breaches and grave breaches. As to the latter, it states that they must be subject to criminal sanction. According to the manual, grave breaches of treaty law are violations of the most fundamental rules of IHL. In addition, there are ordinary breaches. These concern acts which constitute grave breaches but which lack the intent of the actor or cases in which neither death nor serious bodily injuries are caused. As other examples of such ordinary breaches, the manual lists cases of appropriation of property of prisoners of war, insulting internees and unnecessary damaging of civilian objects. According to the manual, war crimes can also take place by negligence. Lastly, the manual refers to Article 86 of the 1977 Additional Protocol I, noting the duty to repress grave breaches and to take measures necessary to suppress all other breaches which result from a failure to act when under a duty to do so.
The Military Manual (2005) of the Netherlands states: “Those who engage in acts of war without being entitled to do so (known as ‘unlawful combatants’) thereby commit a war crime for which they can be prosecuted.”
The manual also states: “Incitement to commit war crimes, such as killing civilians, is forbidden.”
The manual further states that “persons responsible for improper treatment of prisoners of war, or for permitting such treatment, may be prosecuted as war criminals”.
In its chapter on the protection of prisoners of war, the manual states:
Prisoners of war prosecuted under the laws of the detaining power, for actions committed before their capture remain under the protection of the PoW Convention [1949 Geneva Convention III], even if convicted. This means that, after capture, a prisoner of war may be convicted for war crimes he has committed, but he retains prisoner-of-war status, with all associated rights.
In addition, the manual states: “Breaking of parole or breach of promise constitutes a war crime.”
In its chapter on neutrality, the manual states:
A national of a neutral State, who lives in or visits an occupied territory, or the territory of a belligerent, may be convicted of war crimes or offences against the humanitarian law of war, like anyone else.
In its chapter on the prevention and punishment of war crimes, the manual states:
1131. War crimes means breaches of the laws and customs of war, infringements of the rules of the humanitarian law of war. It is further noted that war crimes at first sight are also crimes against humanity. However, one difference is that crimes against humanity can also be committed outside war. They may be carried out against the State’s own civilian population, and even be based on legal provisions enacted in the State itself. Moreover, such crimes have a different scope from war crimes in the narrow sense, namely suppression or destruction of populations or population groups on grounds of politics, race, belief, etc.
1132. The Geneva Conventions of 1949, which support States in establishing penal provisions to punish offenders against the rules of the law of war, also impose an obligation on States to prosecute violations and bring them to trial. The treaties of the law of war recognize the distinction between serious violations and other infringements of the obligations in the conventions. Serious breaches must be expressly threatened with punishment. No obligation applies to other infringements, i.e., more general offences against the laws and customs of war, but they may also be made punishable without an obligation to do so. This has now taken place in the Netherlands, in the form of the Act on the Criminal Law of War. Account is often taken of this distinction when determining the punishment. Of course, serious violations are breaches of the fundamental rules of the humanitarian law of war. Both the Geneva Conventions and AP I [1977 Additional Protocol I] define serious violations. Conventions enacted later (the Cultural Property Convention and the Chemical Weapons Convention) also require States to make breaches of their provisions punishable.
1134. The [Dutch] International Criminal Offences Act (see points 1137 ff.) contains an extensive summary of criminal behaviour (both serious violations and other infringements, formulated in the conventions on the law of war).
The Extraordinary Penal Law Decree (1943), as amended in 1947, of the Netherlands, relating to offences committed during the Second World War, provided:
He who during the time of the … war and while in the forces or service of the enemy state is guilty of a war crime or any crime against humanity as defined in Article 6 under (b) or (c) of the [1945 IMT Charter (Nuremberg)] shall, if such crime contains at the same time the elements of an act punishable according to Netherlands Law, receive the punishment prescribed for such act.
If such crime does not at the same time contain the elements of an act punishable according to the Netherlands law, the perpetrator shall receive the punishment prescribed by Netherlands law for the act with which it shows the greatest similarity.
The Decree Instituting the Commission for the Investigation of War Crimes (1945) of the Netherlands, relating to offences committed during the Second World War, stated:
Under war crimes shall be understood … facts which constitute crimes considered as such according to Dutch law and which are forbidden by the laws and customs of war and have been committed during the present war by other than Dutchmen or Dutch subjects.
The Definition of War Crimes Decree (1946) of the Netherlands states: “Under war crimes are understood acts which constitute a violation of the laws and usages of war committed in time of war by subjects of an enemy power or by foreigners in the service of the enemy.”
In the Pilz case
in 1949, the Special Criminal Chamber of the District Court of The Hague (Netherlands) and, on appeal in 1950, the Special Court of Cassation of the Netherlands agreed that the 1907 Hague Regulations had not been violated, since the object of the 1907 Hague Regulations, and in particular of Article 46, was to protect the inhabitants of an enemy-occupied country and not members of the occupying forces. With respect to the 1929 Geneva Convention, the Special Court of Cassation stated that the Convention only protected members of an army against acts by members of the opposing army. Therefore, the acts of a German military doctor with respect to an escaping member of the German army did not constitute war crimes, but were crimes in the domestic sphere of German military law and jurisdiction.
The Report on the Practice of the Netherlands, referring to an interview with a legal adviser of the Ministry of Justice of the Netherlands, states:
Section 8 of the Criminal Law in Wartime Act [as amended, according to which “violations of the laws and customs of war” are offences] cannot be construed as a definition of war crimes. A violation [of IHL other than a grave breach] has to be as severe as is required for a grave breach in order to be a war crime. The Ministry of Justice does not make a distinction between international and internal armed conflicts regarding the grave breaches regime.