Definition of War Crimes

Volume II, Chapter 44, Section A.

State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.

The Statute of the International Criminal Court defines war crimes as, inter alia, “serious violations of the laws and customs applicable in international armed conflict” and “serious violations of the laws and customs applicable in an armed conflict not of an international character”.[1] The Statutes of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone and UNTAET Regulation No. 2000/15 for East Timor also provide jurisdiction over “serious” violations of international humanitarian law.[2] In the Delalić case in 2001, in interpreting Article 3 of the Statute of the International Criminal Tribunal for the former Yugoslavia listing the violations of the laws or customs of war over which the Tribunal has jurisdiction, the Appeals Chamber stated that the expression “laws and customs of war” included all laws and customs of war in addition to those listed in the Article.[3] The adjective “serious” in conjunction with “violations” is to be found in the military manuals and legislation of several States.[4]

There is also practice which does not contain the adjective “serious” with respect to violations and which defines war crimes as any violation of the laws or customs of war.[5] The military manuals and legislation of a number of States similarly do not require violations of international humanitarian law to be serious in order to amount to war crimes.[6] However, most of this practice illustrates such violations in the form of lists of war crimes, typically referring to acts such as theft, wanton destruction, murder and ill-treatment, which indicates that these States in fact limit war crimes to the more serious violations of international humanitarian law.

A deductive analysis of the actual list of war crimes found in various treaties and other international instruments, as well as in national legislation and case-law, shows that violations are in practice treated as serious, and therefore as war crimes, if they endanger protected persons or objects or if they breach important values.

(i) The conduct endangers protected persons or objects. The majority of war crimes involve death, injury, destruction or unlawful taking of property. However, not all acts necessarily have to result in actual damage to persons or objects in order to amount to war crimes. This became evident when the Elements of Crimes for the International Criminal Court were being drafted. It was decided, for example, that it was enough to launch an attack on civilians or civilian objects, even if something unexpectedly prevented the attack from causing death or serious injury. This could be the case of an attack launched against the civilian population or individual civilians, even though, owing to the failure of the weapon system, the intended target was not hit. The same is the case for subjecting a protected person to medical experiments – actual injury is not required for the act to amount to a war crime; it is enough to endanger the life or health of the person through such an act.[7]

(ii) The conduct breaches important values. Acts may amount to war crimes because they breach important values, even without physically endangering persons or objects directly. These include, for example, abusing dead bodies;[8] subjecting persons to humiliating treatment;[9] making persons undertake work that directly helps the military operations of the enemy;[10] violation of the right to fair trial;[11] and recruiting children under 15 years of age into the armed forces.[12]

The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, in the interlocutory appeal in the Tadić case in 1995, stated that, in order for an offence to be subject to prosecution before the Tribunal, the “violation must be serious, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim”. It then went on to illustrate this analysis by indicating that the appropriation of a loaf of bread belonging to a private individual by a combatant in occupied territory would violate Article 46(1) of the Hague Regulations, but would not amount to a “serious” violation of international humanitarian law.[13] As seen from the examples of war crimes referred to above, this does not mean that the breach has to result in death or physical injury, or even the risk thereof, although breaches of rules protecting important values often result in distress and anxiety for the victims.

In the interlocutory appeal in the Tadić case in 1995, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia stated that “the violation of the rule [of international humanitarian law] must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule”.[14] This approach has been consistently taken by the International Criminal Tribunals for the former Yugoslavia and for Rwanda in their case-law concerning serious violations of international humanitarian law other than grave breaches of the Geneva Conventions.[15] For example, with regard to serious violations of Additional Protocol I other than grave breaches, the International Criminal Tribunal for the former Yugoslavia had to examine whether such violations entail individual criminal responsibility under customary international law or whether Additional Protocol I provides for individual criminal responsibility notwithstanding the fact that the violation is not listed as a grave breach.[16]

This practice does not exclude the possibility that a State may define under its national law other violations of international humanitarian law as war crimes. The consequences of so doing, however, remain internal and there is no internationalization of the obligation to repress those crimes and no universal jurisdiction.

Earlier practice seems to indicate that a specific act did not necessarily have to be expressly recognized by the international community as a war crime for a court to find that it amounted to a war crime. This point is illustrated by many judgments by national courts which found the accused guilty of war crimes committed in the Second World War which were not listed in the Charters of the International Military Tribunals at Nuremberg and at Tokyo, such as the lack of fair trial,[17] abuse of dead bodies,[18] offending the religious sensibilities of prisoners of war,[19] and misuse of the red cross emblem.[20]

National practice after the Second World War showed that, whereas States of a common-law tradition tended to try persons on the basis of international law, many States with a civil law tradition – in the absence of special legislation for war crimes – tried the same crimes on the basis of their ordinary criminal legislation.[21] For the latter, therefore, if the act was criminal during peacetime, it could be treated as a war crime when committed during armed conflict, provided that the act was also prohibited by the laws and customs of war. There is also some recent practice to the same effect.[22]

The International Military Tribunal at Nuremberg determined that violations of the Hague Regulations amounted to war crimes because these treaty rules had crystallized into customary law by the time of the Second World War. Similarly, the negotiation of the Statute of the International Criminal Court was based on the premise that, to amount to a war crime to be included in the Statute, the conduct had to amount to a violation of a customary rule of international law. Another example of violations of customary international law being used as a basis for war criminality is the resolution adopted by consensus in the UN Commission on Human Rights declaring that Israel’s “continuous grave breaches” of the Fourth Geneva Convention and Additional Protocol I were war crimes.[23] As neither Israel nor many of the Commission’s members had ratified Additional Protocol I at the time, this statement must have been based on the understanding that these breaches constituted war crimes under customary international law.

However, the vast majority of practice does not limit the concept of war crimes to violations of customary international law. Almost all military manuals and criminal codes refer to violations of both customary law and applicable treaty law.[24] Additional practice specifying treaty provisions as war crimes includes statements to this effect by France, Germany and the United States.[25] The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, in the interlocutory appeal in the Tadić case in 1995, also stated that war crimes can comprise serious violations of both customary rules and applicable treaty provisions, i.e., those that are “unquestionably binding on the parties [to the armed conflict] at the time of the alleged offence”.[26]

Practice provides further specifications with respect to the nature of the conduct constituting a war crime, its perpetrators and their mental state.

(i) Acts or omissions. War crimes can consist of acts or omissions. Examples of the latter include failure to provide a fair trial and failure to provide food or necessary medical care to persons in the power of the adversary.[27] Unlike crimes against humanity, which consist of a “widespread or systematic” commission of prohibited acts, any serious violation of international humanitarian law constitutes a war crime. This is clear from extensive and consistent case-law from the First World War until the present day.

(ii) Perpetrators. Practice in the form of legislation, military manuals and case-law shows that war crimes are violations committed either by members of the armed forces or by civilians against members of the armed forces, civilians or protected objects of the adverse party.[28] National legislation typically does not limit the commission of war crimes to members of the armed forces, but rather indicates the acts that are criminal when committed by any person.[29] Several military manuals contain the same approach.[30] A number of military manuals, as well as some legislation, expressly include the term “civilians” among the persons that can commit war crimes.[31]

(iii) Mental element. International case-law has indicated that war crimes are violations that are committed wilfully, i.e., either intentionally (dolus directus) or recklessly (dolus eventualis).[32] The exact mental element varies depending on the crime concerned.[33]

War crimes include the following serious violations of international humanitarian law:

In the case of an international armed conflict, any of the following acts committed against persons or property protected under the provisions of the relevant Geneva Convention:

This list of grave breaches was included in the Geneva Conventions largely on the basis of crimes pursued after the Second World War by the International Military Tribunals at Nuremberg and at Tokyo and by national courts. The list is repeated in the Statutes of the International Criminal Tribunal for the former Yugoslavia and of the International Criminal Court.[34] It is also reflected in the legislation of many States.[35] The understanding that such violations are war crimes is uncontroversial.

These violations were the subject of war crimes trials after the Second World War.[36] They are also included in the Statute of the International Criminal Court or, if not replicated in exactly the same terms, are in effect covered, as evidenced by the Elements of Crimes for the International Criminal Court.[37] The war crime “making medical or religious personnel, medical units or medical transports the object of attack” covers aspects of the war crime contained in Article 8(2)(b)(ix) and (xxiv) of the Statute of the International Criminal Court.[38] The identification of these violations as war crimes in the Statute of the International Criminal Court was not controversial. Attacking persons hors de combat and the perfidious use of protective emblems or signs are listed in Additional Protocol I as grave breaches.[39] There is also practice which extends the scope of this war crime to the perfidious use of protective signals.[40]

These violations of customary international law are listed as grave breaches in Additional Protocol I and as war crimes in the Statute of the International Criminal Court.[41] The wording varies slightly between these two instruments, but in essence they are the same violations as indicated in the Elements of Crimes for the International Criminal Court.

(i) Making the civilian population or individual civilians, not taking a direct part in hostilities, the object of attack. In addition to the practice mentioned above, there are numerous examples of national legislation which make it a criminal offence to direct attacks against civilians, including the legislation of States not, or not at the time, party to Additional Protocol I.[42] References to more practice can be found in the commentary to Rule 1.

(ii) Launching an attack in the knowledge that such attack will cause incidental loss of civilian life, injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and direct military advantage anticipated. In addition to the practice mentioned above, numerous States have adopted legislation making it an offence to carry out an attack which violates the principle of proportionality.[43] References to more practice can be found in the commentary to Rule 14.

The definition of the war crime “launching an attack in the knowledge that such attack will cause incidental loss of civilian life, injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and direct military advantage anticipated” follows more closely the wording found in the Statute of the International Criminal Court.[44] The word “overall” is not contained in Articles 51 and 85 of Additional Protocol I, nor in the substantive rule of customary international law (see Rule 14). The purpose of this addition in the Statute of the International Criminal Court appears to be to indicate that a particular target can have an important military advantage that can be felt over a lengthy period of time and affect military action in areas other than the vicinity of the target itself. As this meaning is included in the existing wording of Additional Protocol I and the substantive rule of customary international law, the inclusion of the word “overall” does not add an extra element.[45]

(iii) making non-defended localities and demilitarized zones the object of attack. In addition to the practice referred to above, it is an offence to attack non-defended localities under the legislation of numerous States.[46] References to more practice can be found in the commentary to Rule 37.

While “making demilitarized zones the object of attack” is a grave breach of Additional Protocol I, it is not mentioned as such in the Statute of the International Criminal Court. Nevertheless, attacks against demilitarized zones are an offence under the legislation of numerous States.[47] In addition, such attacks would arguably constitute the war crime of “making civilian objects, that is, objects that are not military objectives, the object of attack” or “making the civilian population or individual civilians, not taking a direct part in hostilities, the object of attack” contained in the Statute.[48]

References to more practice can be found in the commentary to Rule 36.

(iv) subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons. In addition to the practice referred to above, numerous military manuals specify the prohibition of physical mutilation, medical or scientific experiments or any other medical procedure not indicated by the state of health of the patient and not consistent with generally accepted medical standards.[49] The prohibition is also found extensively in national legislation.[50] References to more practice can be found in the commentary to Rule 92.

(v) the transfer by the occupying power of parts of its own civilian population into the territory it occupies or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory. In addition to the practice referred to above, numerous military manuals prohibit the deportation or transfer by a party to the conflict of parts of its civilian population into the territory it occupies.[51] This rule is included in the legislation of numerous States.[52]

In addition, numerous military manuals specify the prohibition of unlawful deportation or transfer of civilians in occupied territory.[53] It is an offence under the legislation of many States to carry out such deportations or transfers.[54] There is case-law relating to the Second World War supporting the prohibition.[55]

References to more practice can be found in the commentaries to Rules 129–130.

(vi) making buildings dedicated to religion, education, art, science or charitable purposes or historic monuments the object of attack, provided they are not military objectives. In addition to the practice referred to above, it is a punishable offence to attack such objects under the legislation of numerous States.[56]

With respect to attacking religious or cultural objects, the Statute of the International Criminal Court uses as the basis for this war crime the fact that such an attack is a violation of customary international law, in particular because the objects referred to are civilian and this prohibition is included in the Hague Regulations.[57] Additional Protocol I provides that attacks on religious or cultural objects are grave breaches if such objects have been accorded special protection.[58] In practice this refers to the special protection regime created by the Hague Convention for the Protection of Cultural Property.[59] The Second Protocol to the Hague Convention for the Protection of Cultural Property also subjects such specially protected cultural objects (“placed under enhanced protection”) to the grave breaches regime, as it provides that the attack on such objects or the use of such objects for military purposes is subject to the obligation to prosecute or extradite on the basis of universal jurisdiction.[60] Although an attack on religious or cultural property is a war crime under customary international law, the obligation to prosecute or extradite on the basis of universal jurisdiction for grave breaches defined in this respect in Additional Protocol I and in the Second Protocol to the Hague Convention is only binding on the parties to those treaties. This is true for all the war crimes listed here and which constitute grave breaches of Additional Protocol I (see commentary to Rule 157).

References to more practice can be found in the commentary to Rule 38.

This group of war crimes is listed in the Statute of the International Criminal Court.[61] With the exception of the war crime of “declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party”, these crimes reflect the development of customary international law since the adoption of Additional Protocol I in 1977.

(i) Making civilian objects, that is, objects that are not military objectives, the object of attack. The customary nature of the war crime of making civilian objects the object of attack has been recognized in several judgments of the International Criminal Tribunal for the former Yugoslavia.[62] Many States have adopted legislation making it an offence to attack civilian objects during armed conflict.[63] This war crime is in effect a modern formulation based on the rule in the Hague Regulations which prohibits destruction of enemy property unless imperatively demanded by the necessities of war.[64] This would also cover the deliberate destruction of the natural environment. References to more practice can be found in the commentary to Rules 7 and 50.

(ii) Using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including by impeding relief supplies. The prohibition of using starvation of civilians as a method of warfare was considered a new rule at the time of the adoption of Additional Protocol I. However, practice since then has not only made this a customary rule, but its inclusion in the Statute of the International Criminal Court as a war crime if committed in an international armed conflict was not controversial. Destroying objects indispensable to the survival of the civilian population also reflects a customary prohibition. There had, in fact, been a prosecution relating to a case of destruction of crops in a scorched earth operation during the Second World War, although the basis of the prosecution was the destruction of property not required by military necessity.[65] The prohibition of starvation is set forth in numerous military manuals.[66] Many States have adopted legislation making starvation of civilians as a method of warfare an offence.[67] References to more practice can be found in the commentary to Rules 53–55.

(iii) Making persons or objects involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations the object of attack, as long as they are entitled to the protection given to civilians or civilian objects under international humanitarian law. The prohibition of attacking peacekeeping troops has developed with the greater use of such forces over the last few decades. The criminalization of such behaviour was first introduced in the Convention on the Safety of UN and Associated Personnel.[68] Although this Convention is not yet widely ratified, its characterization of attacks on such personnel, or objects belonging to them, as war crimes was accepted without difficulty during the negotiation of the Statute of the International Criminal Court. It is an offence under the legislation of many States to attack personnel and objects involved in a peacekeeping mission.[69]

As shown by the formulation “as long as they are entitled to the protection given to civilians or civilian objects under international humanitarian law” in the Statute of the International Criminal Court,[70] this war crime is a special application of the war crimes of making the civilian population or individual civilians the object of attack and making civilian objects the object of attack. In the case of attack on troops, the act would only be criminal if, at the time, the troops had not become involved in hostilities and had not thereby lost the protection afforded to civilians under international humanitarian law (see Rule 6). The reference to humanitarian assistance is intended to refer to such assistance being carried out either in the context of peacekeeping operations by troops or civilians, or in other contexts by civilians. References to more practice can be found in the commentary to Rules 31 and 33.

(iv) Launching an attack in the knowledge that such attack will cause widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct military advantage anticipated. The protection of the natural environment is a value that has considerably developed since the adoption of Additional Protocol I. The description of the war crime relating to the environment in the Statute of the International Criminal Court, combining as it does the high threshold of damage and lack of proportionality,[71] is more restrictive than the customary prohibitions relating to the environment (see Rules 43 and 45). The inclusion of this war crime was not controversial during the negotiation of the Statute of the International Criminal Court. In addition, a deliberate attack on the environment, not required by military necessity, would also amount to a war crime because it would in effect be an attack on a civilian object (see Rule 7).

(v) Using prohibited weapons. States negotiating the Statute of the International Criminal Court did so on the basis that the list of war crimes in the Statute reflected customary law rules, including the list of weapons whose use was subject to the Court’s jurisdiction. As well as the specific weapons listed in Article 8(2)(b)(xvii)–(xix) of the Statute, weapons that are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate are listed in Article 8(2)(b)(xx), which adds that they must also be subject to a “comprehensive prohibition” and listed in an annex to the Statute.[72]

Several military manuals provide that the use of prohibited weapons constitutes a war crime.[73] In addition, the use of weapons that are prohibited under international law is a criminal offence under the legislation of numerous States.[74] This practice is both widespread and representative.

(vi) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party. This prohibition goes back to the Hague Regulations.[75] It was included without controversy in the Statute of the International Criminal Court, as it was considered part of customary international law.[76]

(vii) Using human shields. Using human shields is prohibited under customary international law (see Rule 97) but has also been recognized as a war crime by the International Criminal Tribunal for the former Yugoslavia, either as inhuman or cruel treatment,[77] or as an outrage upon personal dignity.[78] Its inclusion in the Statute of the International Criminal Court was uncontroversial.[79] Using human shields constitutes a criminal offence under the legislation of many States.[80] References to more practice can be found in the commentary to Rule 97.

(viii) Conscripting or enlisting children under the age of 15 into armed forces, or using them to participate actively in hostilities. The prohibition of enlisting children under 15 years of age into the armed forces, or using them to participate actively in hostilities, was introduced in Additional Protocol I.[81] Although this is a relatively recent prohibition, the inclusion of such acts as war crimes in the Statute of the International Criminal Court was uncontroversial. The recruitment of children is prohibited under the legislation of many States.[82] Using children to participate actively in hostilities is also prohibited under the legislation of many States.[83] References to more practice can be found in the commentary to Rules 136–137.

(ix) Committing sexual violence, in particular rape, sexual slavery, enforced prostitution and enforced pregnancy. The explicit listing in the Statute of the International Criminal Court of various forms of sexual violence as war crimes reflects changes in society in recent decades, in particular the demand for greater respect for and recognition of women. Although rape was prohibited by the Geneva Conventions, it was not explicitly listed as a grave breach either in the Conventions or in Additional Protocol I but would have to be considered a grave breach on the basis that it amounts to inhuman treatment or wilfully causing great suffering or serious injury to body or health. It was not the subject of war crimes trials after the Second World War, even though the practice of sexual violence was widespread. However, since then, not only has there been recognition of the criminal nature of rape or sexual assault in armed conflict in the legislation of many States,[84] but there have also been a number of prosecutions and convictions on this basis by the International Criminal Tribunals for the former Yugoslavia and for Rwanda.[85]

The inclusion of crimes of sexual violence in the Statute of the International Criminal Court was not of itself controversial. There was, however, some controversy concerning two of the crimes of sexual violence, namely, “forced pregnancy” and “any other form of sexual violence”. “Forced pregnancy” was introduced as a crime in the Statute of the International Criminal Court following the suggestion of Bosnia and Herzegovina and others because of the incidence of such acts during its armed conflict.[86] Some delegations, however, feared that this crime might be interpreted as imposing on States a duty to provide forcibly impregnated women access to abortion.[87] Given that the crime involves two other war crimes, namely, rape and unlawful confinement, the customary nature of the criminality of this behaviour is not in doubt. Characterizing “any other form of sexual violence” as a war crime caused some difficulty for some delegations as they felt it to be somewhat vague. It was solved by introducing the words “also constituting a grave breach of the Geneva Conventions”. Although the intention of some of the groups that pressed for the inclusion of this crime was to stress that any form of sexual violence should be considered to be a grave breach, this phrase has been interpreted by States in the Elements of Crimes for the International Criminal Court as requiring that “the conduct was of a gravity comparable to that of a grave breach of the Geneva Conventions”.[88]

References to more practice can be found in the commentary to Rule 93.

These war crimes are not referred to as such in the Statute of the International Criminal Court. However, they are criminal either by virtue of the fact that such acts in practice amount to one or more of the crimes listed in the Statute, or because they are violations of customary international law, the criminal nature of which has been recognized by the international community.

(i) Slavery and deportation to slave labour. Slavery and deportation to slave labour are violations of customary international law (see Rules 94–95), and their practice in armed conflict amounts to a war crime. The legislation of many States prohibits slavery and the slave trade, or “enslavement”.[89] Deportation of civilians to slave labour is listed as a war crime in the Charter of the International Military Tribunal at Nuremberg.[90] “Enslavement” and deportation to slave labour were the basis for several war crimes trials after the Second World War.[91] References to more practice can be found in the commentary to Rules 94–95.

(ii) Collective punishments. Collective punishments amount to depriving the victims of a fair trial and are listed as a war crime in the legislation of numerous States.[92] Depending on the nature of the punishment, it is likely to amount to one or more other war crimes, as found, for example, in the Priebke case in 1997, which concerned reprisal killings in the Second World War.[93] References to more practice can be found in the commentary to Rule 103.

(iii) Despoliation of the wounded, sick, shipwrecked or dead. In the Pohl case in 1947, the US Military Tribunal at Nuremberg stated that robbing the dead “is and always has been a crime”.[94] Such behaviour generally amounts to either pillage or to the taking of property in violation of international humanitarian law. The behaviour is also specifically characterized as a criminal act in the legislation of numerous States.[95]

The 1906 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field requires that “the necessary measures to repress, in time of war, individual acts of robbery and ill treatment of the sick and wounded of the armies” be taken.[96] In particular, many manuals prohibit pillage of the wounded, sick and shipwrecked, sometimes referred to as “marauding”, or specify that it constitutes a war crime.[97]

References to more practice can be found in the commentary to Rules 111 and 113.

(iv) Attacking or ill-treating a parlementaire or bearer of the flag of truce. This is a violation of the Hague Regulations and of customary international law (see Rule 67). It amounts to an attack on either a civilian or a combatant who at that moment is hors de combat and therefore constitutes a war crime. Several manuals consider that attacks against a parlementaire displaying the white flag of truce constitutes a war crime.[98] Breach of the inviolability of parlementaires is an offence under the legislation of many States.[99] References to more practice can be found in the commentary to Rule 67.

(v) Unjustifiable delay in the repatriation of prisoners of war and civilians. This war crime is listed as a grave breach in Additional Protocol I.[100] So far, no prosecutions of this war crime have been noted, nor is this crime specifically listed in the Statute of the International Criminal Court. However, the criminal nature of this violation has been accepted by the 161 States party to Additional Protocol I. The legislation of numerous States specifies that it is a war crime, including Azerbaijan, which is not party to Additional Protocol I.[101] In case a delay in the repatriation of prisoners of war or civilians is unjustifiable, in practice there would no longer exist a legal basis for their deprivation of liberty and it would amount to unlawful confinement (see commentary to Rule 99).

(vi) The practice of apartheid or other inhuman or degrading practices involving outrages on personal dignity based on racial discrimination. This war crime is listed as a grave breach in Additional Protocol I.[102] It does not appear in exactly these terms in the list of war crimes in the Statute of the International Criminal Court, but such conduct would amount to a war crime as an outrage on personal dignity, as well as humiliating and degrading treatment. Apartheid in the application of international humanitarian law is a crime under the legislation of numerous States.[103] In addition, respect for all persons hors de combat without adverse distinction is a fundamental guarantee provided for in customary international law (see Rule 88).

(vii) Launching an indiscriminate attack resulting in loss of life or injury to civilians or damage to civilian objects. The prohibition of indiscriminate attacks is part of customary international law (see Rule 11). Launching an indiscriminate attack constitutes an offence under the legislation of numerous States.[104] Although not listed as such in the Statute of the International Criminal Court, an indiscriminate attack amounts in practice to an attack on civilians, as indicated by the International Court of Justice in the Nuclear Weapons case in 1996 and in several judgments of the International Criminal Tribunal for the former Yugoslavia.[105]

The description of “intention” of the Statute of the International Criminal Court includes the perpetrator being “aware that [the consequence] will occur in the ordinary course of events”.[106] It is clear that launching an attack knowing that civilian casualties are likely to occur does not in itself necessarily amount to an indiscriminate attack, because incidental injury or damage is not as such prohibited. However, launching an attack without attempting to aim properly at a military target or in such a manner as to hit civilians without any thought or care as to the likely extent of death or injury amounts to an indiscriminate attack. Launching such an attack knowing that the degree of incidental civilian deaths, injuries or damage will be excessive is categorized as a grave breach in Additional Protocol I.[107] References to more practice can be found in the commentary to Rule 11.

(viii) Launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive incidental loss of civilian life, injury to civilians or damage to civilian objects. This war crime is listed as a grave breach in Additional Protocol I.[108] It covers attacks against works or installations which are themselves military objectives, or attacks against military objectives located at or in the vicinity of such works, resulting in excessive incidental civilian casualties or damage.[109] Such an attack is a violation of customary international law and is also covered, in practice, by the Statute of the International Criminal Court (“launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects … which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”).[110] References to more practice can be found in the commentary to Rule 42.

In the case of an armed conflict not of an international character, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

Common Article 3 of the Geneva Conventions has crystallized into customary international law, and the breach of one or more of its provisions has been recognized as amounting to a war crime in the Statutes of the International Criminal Tribunal for Rwanda, of the Special Court for Sierra Leone and of the International Criminal Court, as well as by the International Criminal Tribunal for the former Yugoslavia.[111] Its inclusion in the Statute of the International Criminal Court was largely uncontroversial. It should be pointed out that, although some of the wording is not the same as the equivalent crimes in the grave breaches applicable to international armed conflicts, there is no difference in practice as far as the elements of these crimes is concerned. This is borne out by the Elements of Crimes for the International Criminal Court and by the case-law of the International Criminal Tribunal for the former Yugoslavia.[112]

These violations of customary international law are included in the list of war crimes in the Statute of the International Criminal Court and, for the most part, in the Statutes of the International Criminal Tribunal for Rwanda and of the Special Court for Sierra Leone (see infra).

(i) Making the civilian population or individual civilians, not taking a direct part in hostilities, the object of attack. The International Criminal Tribunal for the former Yugoslavia has referred to this prohibition as a war crime in non-international armed conflicts.[113] The war crime is not listed in the same terms in the Statute of the International Criminal Tribunal for Rwanda, but the Statute refers in general terms to serious violations of Additional Protocol II, Article 13 of which prohibits attacks against civilians.[114] To direct attacks against civilians is an offence under the legislation of numerous States.[115] References to more practice can be found in the commentary to Rule 1.

(ii) Pillage. With respect to the war crime of pillage, the International Criminal Tribunal for the former Yugoslavia, in the Jelisić case in 1999, convicted the accused of “plunder”, a term sometimes used instead of “pillage”, under Article 3 of its Statute.[116] Pillage is an offence under the legislation of many States.[117] References to more practice can be found in the commentary to Rule 52.

(iii) Committing sexual violence, in particular, rape, sexual slavery, enforced prostitution, enforced sterilization and enforced pregnancy. With respect to sexual violence, the Statute of the International Criminal Court specifies in particular rape, sexual slavery, enforced prostitution, enforced sterilization and enforced pregnancy.[118] The Statutes of the International Criminal Tribunal for Rwanda and of the Special Court for Sierra Leone define this war crime as “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault”.[119] In the Furundžija case in 1998 and Kunarac case in 2001, the International Criminal Tribunal for the former Yugoslavia convicted the accused of rape in the context of a non-international armed conflict.[120] Sexual violence is an offence under the legislation of numerous States.[121] The comments above in relation to the crime of sexual violence in international armed conflicts also apply. References to more practice can be found in the commentary to Rule 93.

These are violations of Additional Protocol II and of customary international law, and have been listed as war crimes in the Statute of the International Criminal Court.

(i) Ordering the displacement of the civilian population for reasons related to the conflict and not required for the security of the civilians involved or imperative military necessity. This act is a violation of Additional Protocol II,[122] and of customary international law (see Rule 129). Such acts are often, in practice, linked to policies of “ethnic cleansing” or similarly abusive treatment of certain groups. Such displacement is listed as a war crime under the Statute of the International Criminal Court.[123] It is also a criminal offence under the legislation of numerous States.[124] There have been many condemnations of such behaviour by the UN Security Council, UN General Assembly and UN Commission on Human Rights in the non-international armed conflicts in Afghanistan, Bosnia and Herzegovina, Burundi, Iraq, Liberia, Rwanda, Sudan and Zaire.[125] References to more practice can be found in the commentary to Rule 129.

(ii) Subjecting persons in the power of the adversary to medical or scientific experiments of any kind not necessary for the health of the persons concerned and seriously endangering their health. This act is a violation of Additional Protocol II,[126] and of customary international law (see Rule 92). It is listed in the Statute of the International Criminal Court as a war crime if such experimentation results in death or seriously endangers the health of the persons concerned.[127] It is also considered criminal under the legislation of numerous States.[128] Such behaviour is a violation of the respect due to persons in the power of the adversary and is likely also to amount to cruel treatment or an outrage upon personal dignity (see Rule 90). References to more practice can be found in the commentary to Rule 92.

(iii) Declaring that no quarter will be given. This war crime is listed in the Statute of the International Criminal Court.[129] It is not referred to in these terms in Additional Protocol II but is in practice the same as the prohibition of ordering that there be no survivors in Article 4(1) as well as in Article 4(2)(h), which prohibits threats to kill persons hors de combat. The actual carrying out of such threats would be a violation of common Article 3 of the Geneva Conventions. It is an offence under the legislation of numerous States to order that no quarter be given.[130]

The order that no quarter be given is a war crime whether or not the order is carried out. References to more practice can be found in the commentary to Rule 46.

(iv) Making medical or religious personnel or objects the object of attack. Such persons and objects are protected under Additional Protocol II.[131] Attacks on them are listed as a war crime under the Statute of the International Criminal Court in slightly different terms, namely “directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law”.[132] Despite this wording, it should be noted that the distinctive emblem does not of itself confer protected status, and therefore the crime is actually attacking persons or objects knowing that they are medical personnel, units and transports and religious personnel, irrespective of whether or not they are using the emblem.[133]

Religious personnel, whether military or civilian, are entitled to the same respect as military or civilian medical personnel. Attacks on such persons are recognized as criminal in the legislation of many States.[134]

The UN Commissions of Experts Established pursuant to Security Council Resolutions 780 (1992) and 935 (1994) investigated violations of international humanitarian law in the conflicts in the former Yugoslavia and Rwanda respectively, on the understanding that these violations amounted to war crimes.[135] Similarly, attacks on hospitals, medical units and transports are criminalized by the legislation of many States.[136]

Attacks on protected persons or objects in Rwanda, Somalia and the former Yugoslavia have been condemned by the UN Security Council and UN Commission on Human Rights.[137] The protection of medical aircraft is subject to more specific conditions than other objects (see commentary to Rule 29). References to more practice can be found in the commentary to Rules 25–30.

(v) Conscripting or enlisting children under the age of 15 into the armed forces or groups, or using them to participate actively in hostilities. This practice is listed as a war crime in the Statute of the International Criminal Court.[138] The inclusion of this war crime was not controversial during the negotiation of the Statute of the International Criminal Court. The crime has also been included in the Statute of the Special Court for Sierra Leone.[139] Recruiting children under the age of 15 years into the armed forces or groups or using them to participate actively in hostilities was first prohibited by treaty in non-international armed conflicts in Additional Protocol II.[140] Since then, the unlawfulness of this behaviour has gained universal recognition and is reaffirmed in the Convention on the Rights of the Child, to which virtually all States are party.[141] The use of children under 15 in various non-international armed conflicts has been repeatedly and vigorously condemned by the international community.[142] This war crime is also set forth in the legislation of many States.[143]

References to more practice can be found in the commentary to Rules 136–137.

(vi) Making religious or cultural objects the object of attack, provided that they are not military objectives. This practice is prohibited by Additional Protocol II,[144] and by customary international law (see Rule 38). It is listed as a war crime, using wording taken from the Hague Regulations, in the Statute of the International Criminal Court.[145] The attack of such objects in non-international armed conflicts is criminalized in the Hague Convention for the Protection of Cultural Property,[146] to which the Second Protocol adds more detail.[147] The particular importance attributed to this prohibition by the international community is evidenced by the condemnation of such attacks in Afghanistan and the former Yugoslavia.[148] This practice constitutes an offence under the legislation of numerous States.[149] The crime is also listed in the Statute of the International Criminal Tribunal for the former Yugoslavia.[150] In the Tadić case in 1995, the International Criminal Tribunal for the former Yugoslavia found that it applied to non-international armed conflicts.[151] References to more practice can be found in the commentary to Rule 38.

These are violations of customary international law, listed as war crimes in the Statute of the International Criminal Court.[152]

(i) Making civilian objects the object of attack. This is not the expression used by the Statute of the International Criminal Court, but it is essentially the same as the war crime of “destroying the property of an adversary unless such destruction … be imperatively demanded by the necessities of the conflict”.[153] The prohibition of attacking civilian objects is contained in many military manuals applicable in non-international armed conflicts.[154] Numerous States have adopted legislation making it an offence to attack civilian objects during armed conflict.[155]

The criminal nature of the violation, indicated in the Statute of the International Criminal Court and the legislation referred to above, is based on the importance the international community attaches to the need to respect civilian objects. The International Criminal Tribunal for the former Yugoslavia, in the Blaškić case in 2000, found the accused guilty of “unlawful attack[s] on civilian objects” in violation of Article 3 of the Tribunal’s Statute.[156]

References to more practice can be found in the commentary to Rule 7.

(ii) Seizing property of the adverse party not required by military necessity. In addition to pillage, seizing property not justified by military necessity is listed as a war crime in the Statute of the International Criminal Court.[157] The Statute of the International Criminal Tribunal for the former Yugoslavia lists “plunder of public or private property” as a war crime.[158] In the Jelisić case, the International Criminal Tribunal for the former Yugoslavia convicted the accused of plunder under Article 3(e) of its Statute.[159] Seizing property not justified by military necessity is an offence under the legislation of many States.[160] References to more practice can be found in the commentary to Rule 50.

(iii) Making persons or objects involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations the object of attack, as long as they are entitled to the protection given to civilians or civilian objects under international humanitarian law. This war crime is contained in Article 4 of the Statutes of the Special Court for Sierra Leone and of the International Criminal Court.[161] It was included on the basis that such acts amount to attacks on civilians or civilian objects. It is an offence under the legislation of many States to attack personnel and objects involved in a peacekeeping mission.[162] It is also significant that such operations take place in all types of conflicts and the nature of the conflict does not change in any way the respect that the international community expects to be accorded to such personnel and their equipment. References to more practice can be found in the commentary to Rules 31 and 33.

(iv) Killing or wounding an adversary by resort to perfidy. This war crime is listed in the Statute of the International Criminal Court.[163] It is an offence under the legislation of many States, especially if it involves the perfidious use of the red cross or red crescent emblem.[164] The criminal nature of this act in non-international armed conflicts was also confirmed by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in the Tadić case in 1995.[165] References to more practice can be found in the commentary to Rule 65.

These violations are not listed in the Statute of the International Criminal Court as war crimes. However, State practice recognizes their serious nature and, as a result, a court would have sufficient basis to conclude that such acts in a non-international armed conflict are war crimes.

(i) Using prohibited weapons. Recent treaties prohibiting the use of certain weapons in any type of conflict require that such use be subject to criminal sanctions. This is the case for the Chemical Weapons Convention, Amended Protocol II to the Convention on Certain Conventional Weapons and the Ottawa Convention banning anti-personnel landmines.[166] The Statute of the International Criminal Court does not include the use of prohibited weapons in the sections dealing with non-international armed conflicts, but this issue was not openly debated during the Rome Diplomatic Conference.

Several military manuals provide that the use of prohibited weapons constitutes a war crime.[167] The national legislation criminalizing the use of prohibited weapons does so in general terms. None limits such criminality to international armed conflicts and several explicitly criminalize the use of prohibited weapons in non-international armed conflicts.[168] As most States define a “war crime” as being a “violation” or a “serious violation” of international humanitarian law (see supra), it is reasonable to conclude that they would consider the use of prohibited weapons in non-international armed conflicts to fall within this category.

The UN Secretary-General’s Bulletin on observance by United Nations forces of international humanitarian law, which is not limited to international armed conflicts, provides that violations of its rules – including those requiring respect for treaties prohibiting the use of certain weapons – be treated as criminal offences.[169]

The use of prohibited weapons may also amount to another war crime, in particular attacking civilians or launching indiscriminate attacks. This would be the case, for example, for the use of biological weapons. References to more practice can be found in the commentaries to Rules 70–79 and Rule 86.

(ii) Launching an indiscriminate attack resulting in death or injury to civilians, or an attack in the knowledge that it will cause excessive incidental civilian loss, injury or damage. Launching indiscriminate attacks in non-international armed conflicts has been so frequently and vigorously condemned by the international community as to indicate the customary nature of this prohibition, which protects important values and is aimed at preventing unwarranted death and injury. As such, this violation falls into the general definition of war crimes. Launching an indiscriminate attack is an offence under the legislation of numerous States.[170] The International Criminal Tribunal for the former Yugoslavia referred to this violation in the context of non-international armed conflicts in the Tadić case in 1995 and, in general terms, in the Kupreškić case in 2000.[171]

The same consideration is true for the launching of attacks in the knowledge that they will cause excessive incidental civilian damage, injury or death. In particular, launching such attacks is an offence under the legislation of many States.[172]

Both indiscriminate and disproportionate attacks can be likened to attacks on civilians if the perpetrator was aware that this would be the effect of the attack in the ordinary course of events. This was in effect confirmed by the UN Commission on Human Rights when it expressed its grave concern about “reports indicating disproportionate and indiscriminate use of Russian military force” in the conflict in Chechnya based on Additional Protocol II, which prohibits attacks on civilians but does not specifically refer to indiscriminate or disproportionate attacks.[173]

References to more practice can be found in the commentary to Rules 11 and 14.

(iii) Making non-defended localities and demilitarized zones the object of attack. This practice amounts to a war crime because such attacks are either attacks on the civilian population or on civilian objects, namely destruction of an adversary’s property not imperatively demanded by the necessities of the conflict (see Rule 50).[174] This crime constitutes an offence under the legislation of numerous States.[175] References to more practice can be found in the commentary to Rules 36–37.

(iv) Using human shields. This practice has been recognized as a war crime by the International Criminal Tribunal for the former Yugoslavia, either as a form of cruel treatment,[176] or an outrage upon personal dignity.[177] The legislation of several States criminalizes the use of human shields in non-international armed conflicts.[178] The use of human shields in non-international armed conflicts has been condemned by States and by the United Nations, for example, with respect to the conflicts in Liberia, Rwanda, Sierra Leone, Somalia, Tajikistan and the former Yugoslavia.[179] References to more practice can be found in the commentary to Rule 97.

(v) Slavery. Slavery is prohibited by Additional Protocol II,[180] and customary international law (see Rule 94). The military manuals and the legislation of many States prohibit slavery and the slave trade, or “enslavement”.[181] In addition, this practice constitutes a war crime because it amounts to cruel treatment or an outrage upon personal dignity (see Rule 90). Slavery and slave labour are also prohibited under the legislation of numerous States.[182] References to more practice can be found in the commentary to Rule 94.

(vi) Collective punishments. Collective punishments are prohibited by Additional Protocol II,[183] and customary international law (see Rule 103). This prohibition is also set forth in the legislation of many States.[184] This war crime is listed in the Statutes of the International Criminal Tribunal for Rwanda and of the Special Court for Sierra Leone.[185] In addition, collective punishments constitute a war crime because they consist of the deprivation of the right to fair trial (see Rule 100) and may also constitute cruel treatment (see Rule 90). References to more practice can be found in the commentary to Rule 103.

(vii) Using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including by impeding relief supplies. This practice is a violation of Additional Protocol II,[186] and customary international law (see Rule 53). In addition, there is very extensive State practice expressing outrage at such acts in non-international armed conflicts, including the impediment of relief supplies which caused the starvation of civilians. This practice proves that such behaviour is not only a violation of customary international law, but also, in the eyes of the international community, a very serious violation.

The UN Commission on Human Rights characterized the deliberate impeding of humanitarian relief supplies to Sudanese civilians as “an offence to human dignity”.[187] It is particularly noteworthy that the UN Commission of Experts Established pursuant to Security Council Resolution 935 (1994) included a breach of Article 14 of Additional Protocol II in its interim report on violations of international humanitarian law in Rwanda.[188]

Several States specifically criminalize the use of starvation of civilians as a method of warfare.[189] In addition, these violations in practice amount to killing civilians, in itself a war crime, because each violation consists of deliberate acts that in the normal course of events lead to their death. They may also be considered to be inhuman treatment (see Rule 87).

References to more practice can be found in the commentary to Rules 53–55.

It should also be noted that certain conduct, not listed above, is nevertheless criminal because it consists of a combination of a number of war crimes. These so-called composite war crimes are, in particular, enforced disappearances and ethnic cleansing. Enforced disappearance amounts in practice to depriving a person of a fair trial and often also to murder (see commentary to Rule 98). Ethnic cleansing comprises various war crimes, such as murder, rape, unlawful deportation or ordering the displacement of the civilian population for reasons relating to the conflict and not required for the security of the civilians nor for reasons of imperative military necessity, and outrages on personal dignity based on racial discrimination and inhuman or degrading treatment (see commentary to Rule 129).