Whether in conflicts in Syria, Yemen or Iraq, civilians bear the brunt of war. The protection of civilians, as well as those who are no longer taking part in hostilities, lies at the foundation of international humanitarian law (IHL), the law that regulates the conduct of war.
Over recent weeks news reports have covered war crimes in different parts of the world that are beset by conflict. War crimes are considered to be among the most serious international crimes. But what is a war crime?
A war crime occurs when superfluous injury or unnecessary suffering is inflicted upon an enemy. In spite of the outrage caused by the bombing of a school or a country’s TV station, such actions do not necessarily amount to war crimes. Such bombing will only be a war crime if the extent of civilian casualties resulting from the attack is excessive compared to the military advantage gained from the attack.
In contrast with genocide and crimes against humanity, war crimes have to occur in the context of armed conflict.
Although the concept of war crimes has ancient roots, rules on war crimes started to develop at the end of the 19th century. The meaning of war crimes was clarified in the four 1949 Geneva Conventions.
Article 147 of the Fourth Geneva Convention defines war crimes as “wilful killing, torture or inhuman treatment, including … wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person … taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”.
The Geneva Conventions established that states could exercise jurisdiction over such crimes. Over recent decades, international courts such as the Yugoslavia Tribunal and the International Criminal Court (ICC) have exercised jurisdiction over individuals accused of war crimes.
The Rome Statute of the ICC expanded the list of crimes that constitutes war crimes. The statute, for example, recognises forced pregnancy as a war crime.
The ICC has heard several cases of war crimes. Jean-Pierre Bemba, for example, was accused of the war crime of initiating campaigns of mass rape committed against civilians in the Central African Republic. In the Ntaganda case, the ICC found sexual crimes committed by members of a Congolese armed group against other members of the same group were war crimes.
According to Yvonne McDermott, a lecturer at Bangor University, this interpretation could have far-reaching implications. Since the denial of a fair trial is a war crime, it could, for example, now be a war crime for an armed force to deny its own members a fair trial.
Proportionality, distinction and precaution
The three main pillars of humanitarian law are the principles of distinction, proportionality and precaution. If any or all of these principles are violated, it could be found that a war crime has been committed.
According to the International Committee of the Red Cross (ICRC), the principle of proportionality prohibits military objectives that are “expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objectives, which would be excessive in relation to the concrete and direct military advantage anticipated”.
According to Damilola Olawuyi, associate professor at Hamad bin Khalifa University, attacks constitute violations of the Rome Statute if they are clearly excessive in relation to the direct overall military advantage anticipated.
The principle of distinction requires distinguishing between combatants and civilians. The principle criminalises direct and intentional attacks against civilians in armed conflict situations.
Stephan Ojeda, a legal adviser at the ICRC, points to the increasingly blurred distinction between civilian and military functions that make it increasingly difficult to adhere to the principle of distinction.
Ojeda said this is made more complex by the intermingling of armed actors with the civilian population that occurs, especially in urban fighting. This is further aggravated by the wide variety of tasks performed by civilians in armed conflicts and the complexity of modern means of warfare.
The principle of precaution holds that in the conduct of hostilities during an armed conflict, parties to the conflict must seek to avoid or minimise harm to the civilian population. The willful failure to adhere to this principle could constitute a war crime.
Prosecuting war crimes
In spite of the near-universal ratification of the Geneva Conventions, war crimes often go unpunished.
According to Mark Drumbl, professor of law at Washington and Lee University, this can be attributed to several factors, including difficulties in obtaining evidence beyond a reasonable doubt, high requirements such as proving intention and, most importantly, power politics.
The limits of international and national courts in terms of reach and jurisdiction are also a consideration, as is the reality the victors of conflict are often in control of questions over post-war justice.
Olawuyi told Al Jazeera even in the absence of the intention to harm civilians, “any mass injury to civilians, specifically schoolchildren, in an armed conflict could result in the violation of other core human rights norms and principles”.
He said recent reports of bomb attacks on schools in Syria are “extremely worrisome”.
“However more facts and careful analyses will be required to clearly establish a violation of the principles of distinction, proportionality and precaution, which are the hallmarks of humanitarian law,” said Olawuyi.
This means armed groups should proceed with caution and try to eliminate or minimise extensive military action in areas where civilian casualties are likely to occur. If an armed group fails to take measures to protect civilians, it can be accused of war crimes.