Equipo Nizkor - Definition of War Crimes

Introduction

War crimes are those violations of International Humanitarian Law (IHL) that entail individual criminal responsibility.

"International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare.International humanitarian law is also known as the law of war or the law of armed conflict.

International humanitarian law is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States – treaties or conventions –, in customary rules, which consist of State practise considered by them as legally binding, and in general principles. International humanitarian law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter."|1|

IHL applies to humanitarian problems directly arising from international or non-international armed conflicts. It also protects property that is, or may be, affected by an armed conflict.

"While limitations on the conduct of armed conflict date back at least to the Chinese warrior Sun Tzu (sixth century b.c.e.), the ancient Greeks were among the first to regard such prohibitions as law. The notion of war crimes per se appeared more fully in the Hindu code of Manu (circa 200 b.c.e.)... The first true trial for war crimes is generally considered to be that of Peter von Hagenbach, who was tried in 1474 in Austria and sentenced to death for wartime atrocities."|2|

The codification of international humanitarian law began in the nineteenth century and by World War I States had accepted a series of practical rules and the fact that certain violations of the laws of war -namely the Hague Conventions of 1899 and 1907 at that time- amounted to war crimes.

In fact, "[T]he genesis of modern international criminal law occurred in the interim between the two wars. At the conclusion of the Great War, the Allied Powers convened a special commission of international law experts to address criminal responsibility. Robert Lansing, the U.S. Secretary of State, chaired the Commission on the Responsibility of the Authors of War and Enforcement of Penalties for Violations of the Laws and Customs of War, which issued a Report naming over 850 suspected war criminals and enumerating 32 activities constituting war crimes. Leading up to the Treaty of Versailles, the report asserted that 'all persons belonging to enemy countries ... who have been guilty of offenses against the laws and customs of war or the laws of humanity, are liable to criminal prosecution'. The Treaty of Versailles, 1919, served two basic purposes. It included the Covenant of the League of Nations, the institution designed to establish a pacific world order, and it established the terms of the peace as dictated by the victorious Allies... In addition to its Report, Lansing's Commission also drafted the "Penalties" section of the Treaty, which included Kaiser Wilhelm II's public arraignment for 'a supreme offence against international morality and the sanctity of treaties'... Although the Treaty of Versailles also called for military tribunals administered by the Allied Powers, German war prisoners were ultimately returned, ostensibly to face a special court established in 1921 in Leipzig. The Criminal Senate of the Imperial Court of Justice held just twelve trials, none of which concerned significant figures..." |3|

But it was the Nuremberg and Tokyo (1946) Tribunals, established to prosecute the major war criminals of the European Axis countries and Far Eastern war criminals in the aftermath of World War II, which constituted a keystone in the prosecution of violations of international law in war time. All three judicial effort, the Leipzig, Nuremberg and Tokyo trials, took place before the advent of the Geneva Conventions of 1949.

"A major part of international humanitarian law is contained in the four Geneva Conventions of 1949. Nearly every State in the world has agreed to be bound by them. The Conventions have been developed and supplemented by two further agreements: the Additional Protocols of 1977 relating to the protection of victims of armed conflicts." |4|

"Each of the four Geneva Conventions (on wounded and sick on land, wounded and sick at sea, prisoners of war, and civilians) contains its own list of grave breaches. The list in its totality is: willful killing; torture or inhuman treatment (including medical experiments); willfully causing great suffering or serious injury to body or health; extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or civilian to serve in the forces of the hostile power; willfully depriving a prisoner of war or protected civilian of the rights of a fair and regular trial; unlawful deportation or transfer of a protected civilian; unlawful confinement of a protected civilian; and taking of hostages. Additional Protocol I of 1977 expanded the protections of the Geneva Conventions for international conflicts to include as grave breaches: certain medical experimentation; making civilians and nondefended localities the object or inevitable victims of attack; the perfidious use of the Red Cross or Red Crescent emblem; transfer of an occupying power of parts of its population to occupied territory; unjustifiable delays in repatriation of POWs [Prisoners of War]; apartheid; attack on historic monuments; and depriving protected persons of a fair trial. Under the Geneva Conventions and Additional Protocol I, States must prosecute persons accused of grave breaches or hand them over to a State willing to do so.

The grave breaches provisions only apply in international armed conflicts; and they only apply to acts against so-called protected persons or during battlefield activities. Protected persons are, in general, wounded and sick combatants on land and sea, POWs, and civilians who find themselves in the hands of a state of which they are not nationals.

Most violations of the Geneva Conventions and Additional Protocols are not grave breaches. Of those not listed as grave breaches, many are still considered war crimes, although in those cases States do not have the same obligation to extradite or prosecute as they do for grave breaches. Other nongrave breaches are not war crimes, but simply illegal acts for which only the violating State is responsible under international law... Wartime atrocities not prohibited under the Geneva Conventions or Additional Protocol I may nonetheless be war crimes under the customary law rubric of "violations of the laws and customs of war" (the same phrase as in the Nuremberg Charter). For interstate conflicts, states agree that such war crimes include certain violations of the 1907 Hague Convention and Regulations, such as use of poisonous weapons, wanton destruction of cities not justified by military necessity, attacks on undefended localities, attacks on religious and cultural institutions, and plunder of public and private property. The Statute of the International Criminal Court (ICC) lists as war crimes for international conflicts not only the grave breaches of the Geneva Conventions, but some twenty-six serious violations of the laws and customs of war, most of which have been considered by States as crimes since at least World War II.

As for civil wars, unfortunately, international law today has fewer rules regulating the conduct of internal conflicts, which many States consider part of their domestic jurisdiction and, consequently, there is a shorter list of war crimes. Additional Protocol II of 1977, which contains basic rules for the conduct of internal conflicts, has no criminal liability provisions, and the reach of customary law war crimes is not as clear with respect to such wars as it is for international wars. The Statute of the International Criminal Tribunal for the Former Yugoslavia includes “serious violations of Common Article 3 of the Geneva Conventions” (the one article of the Geneva Conventions that addresses civil wars), as well as other rules to protect victims of armed conflict and basic rules on methods of warfare. The tribunal defined a serious violation as one that has grave consequences for its victims and breaks a rule protecting important values. This would presumably include violence to life or health (murder, ill-treatment, torture, mutilation, corporal punishment, rape, enforced prostitution, indecent assault), summary executions, hostage taking, collective punishment, and pillage. This list, while shorter than the list of grave breaches or other interstate war crimes, nonetheless would cover some of the most horrific acts during recent conflicts. [In fact, in the interlocutory appeal in the Tadic case in 1995, the International Criminal Tribunal for the Former Yugoslavia adopted a broader view and found that international criminal responsibility also arose from acts committed during internal armed conflict]. The Statute of the International Criminal Tribunal for Rwanda includes as war crimes serious violations of Common Article 3 as well as serious violations of Additional Protocol II. The Statute of the ICC lists as war crimes for internal conflicts four serious violations of Common Article 3 (violence to life and person, outrages upon personal dignity, hostage taking, and summary executions), as well as twelve serious violations of the laws and customs of war (e.g., attacks on civilians, pillage, rape, or mutilation)." |5|

Therefore, International humanitarian law distinguishes between international and non-international armed conflict. "Non-international armed conflicts are those restricted to the territory of a single State, involving either regular armed forces fighting groups of armed dissidents, or armed groups fighting each other. A more limited range of rules apply to internal armed conflicts and are laid down in Article 3 common to the four Geneva Conventions as well as in Additional Protocol II. It is important to differentiate between international humanitarian law and human rights law. While some of their rules are similar, these two bodies of law have developed separately and are contained in different treaties. In particular, human rights law – unlike international humanitarian law – applies in peacetime, and many of its provisions may be suspended during an armed conflict." |6|

As mentioned above, the Statute of the International Criminal Court, adopted at a Plenipotenciary Conference held at Rome in 1998, includes war crimes committed in international armed conflicts as well as in non-international armed conflicts.

For a detailed account of the definition of war crimes under IHL treaties and conventions, under customary international law, as well as in the Statutes of International and Hybrid Tribunals, please refer to the corresponding sections below.

War Crimes in International Humanitarian Law Treaties

A. Treaties (Pre-1940):

Hague Convention (II) on the Laws and Customs of War on Land, 1899. 29.07.1899
Hague Declaration (IV,2) concerning Asphyxiating Gases, 1899. 29.07.1899
Hague Declaration (IV,3) concerning Expanding Bullets, 1899. 29.07.1899
Hague Convention (III) on the Opening of Hostilites, 1907. 18.10.1907
Hague Convention (IV) on War on Land and its Annexed Regulations, 1907. 18.10.1907
Hague Convention (V) on Neutral Powers in case of War on Land, 1907. 18.10.1907
Hague Convention (VI) on Enemy Merchant Ships, 1907. 18.10.1907
Hague Convention (VII) on Conversion of Merchant Ships, 1907. 18.10.1907
Hague Convention (VIII) on Submarine Mines, 1907. 18.10.1907
Hague Convention (IX) on Bombardment by Naval Forces, 1907. 18.10.1907
Hague Convention (XI) on Restrictions of the Right of Capture, 1907. 18.10.1907
Hague Convention (XIII) on Neutral Powers in Naval War, 1907. 18.10.1907
Hague Declaration (XIV) on Explosives from Balloons, 1907. 18.10.1907
Geneva Protocol on Asphyxiating or Poisonous Gases, and of Bacteriological Methods, 1925. 17.06.1925
Roerich Pact for the Protection of Artistic and Scientific Institutions, 1935. 15.04.1935

B. The Geneva Conventions (1949) and the Additional Protocols to the Geneva Conventions:

(Please, note that an important part of the Geneva Conventions serve as a primary source of customary international humanitarian law, even in the event of non ratification).

Definition of War Crimes under Customary International Humanitarian Law

Excerpted from the study on customary international humanitarian law conducted by the International Committee of the Red Cross (ICRC) and published by Cambridge University Press in 2005. The publication consists of two volumes. It analyzes the customary rules of international humanitarian law and contains a detailed summary of the relevant treaty law and state practice throughout the world. This publication identifies the common core of international humanitarian law binding on all parties to all armed conflicts. It was edited by Jean-Marie Henckaerts (ICRC) and Louise Doswald-Beck (International Commission of Jurists).

Rule 156. Definition of War Crimes
Rule 156. Serious violations of international humanitarian law constitute war crimes.

Summary

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

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 Delalic 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.

Serious nature of the violation

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 Tadic 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.

Violations entailing individual criminal responsibility under international law

In the interlocutory appeal in the Tadic 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]

Violations of customary international law or treaty law

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 Tadic 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]

Interpretation

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]

List of war crimes

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

(i) Grave breaches of the Geneva Conventions:

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:

• wilful killing;

• torture or inhuman treatment, including biological experiments;

• wilfully causing great suffering or serious injury to body or health;

• extensive destruction or appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

• compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

• wilfully depriving a prisoner of war or other protected person of the rights of a fair and regular trial;

• unlawful deportation or transfer;

• unlawful confinement;

• taking of hostages.

Basis for the war crimes listed above

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.

(ii) Other serious violations of international humanitarian law committed during an international armed conflict:

• committing outrages upon personal dignity, in particular, humiliating or degrading treatment and desecration of the dead;

• enforced sterilization;

• compelling the nationals of the adverse party to take part in military operations against their own party;

• killing or wounding a combatant who has surrendered or is otherwise hors de combat;

• declaring that no quarter will be given;

• making improper use of distinctive emblems indicating protected status, resulting in death or serious personal injury;

• making improper use of the flag, the military insignia or uniform of the enemy resulting in death or serious personal injury;

• killing or wounding an adversary by resort to perfidy;

• making medical or religious personnel, medical units or medical transports the object of attack;

• pillage or other taking of property contrary to international humanitarian law;

• destroying property not required by military necessity.

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]

(ii) Other serious violations of international humanitarian law committed during an international armed conflict (continued):

• making the civilian population or individual civilians, not taking a direct part in hostilities, the object of attack;

• 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;

• making non-defended localities and demilitarized zones the object of attack;

• 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;

• 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;

• making buildings dedicated to religion, education, art, science or charitable purposes or historic monuments the object of attack, provided they are not military objectives.

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.

(ii) Other serious violations of international humanitarian law committed during an international armed conflict (continued):

• making civilian objects, that is, objects that are not military objectives, the object of attack;

• using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including by impeding relief supplies;

• 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;

• 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;

• using prohibited weapons;

• declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;

• using human shields;

• conscripting or enlisting children under the age of 15 into armed forces, or using them to participate actively in hostilities;

• committing sexual violence, in particular rape, sexual slavery, enforced prostitution and enforced pregnancy.

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.

(ii) Other serious violations of international humanitarian law committed during an international armed conflict (continued):

• slavery and deportation to slave labour;

• collective punishments;

• despoliation of the wounded, sick, shipwrecked or dead;

• attacking or ill-treating a parlementaire or bearer of a flag of truce;

• unjustifiable delay in the repatriation of prisoners of war or civilians;

• the practice of apartheid or other inhuman or degrading practices involving outrages on personal dignity based on racial discrimination;

• launching an indiscriminate attack resulting in loss of life or injury to civilians or damage to civilian objects;

• 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.

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.

(iii) Serious violations of common Article 3 of the Geneva Conventions:

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:

• violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

• committing outrages upon personal dignity, in particular humiliating and degrading treatment;

• taking of hostages;

• the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

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]

(iv) Other serious violations of international humanitarian law committed during a non-international armed conflict:

• making the civilian population or individual civilians, not taking a direct part in hostilities, the object of attack;

• pillage;

• committing sexual violence, in particular, rape, sexual slavery, enforced prostitution, enforced sterilization and enforced pregnancy.

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 Jelisic 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.

(iv) Other serious violations of international humanitarian law committed during a non-international armed conflict (continued):

• 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;

• 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;

• declaring that no quarter will be given;

• making medical or religious personnel or objects the object of attack;

• conscripting or enlisting children under the age of 15 into the armed forces or groups, or using them to participate actively in hostilities;

• making religious or cultural objects the object of attack, provided that they are not military objectives.

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 Tadic 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.

(iv) Other serious violations of international humanitarian law committed during a non-international armed conflict (continued):

• making civilian objects the object of attack;

• seizing property of the adverse party not required by military necessity;

• killing or wounding an adversary by resort to perfidy.

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 Blaškic 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 Jelisic 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 Tadic case in 1995.[165] References to more practice can be found in the commentary to Rule 65.

(iv) Other serious violations of international humanitarian law committed during a non-international armed conflict (continued):

• using prohibited weapons;

• 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;

• making non-defended localities and demilitarized zones the object of attack;

• using human shields;

• slavery;

• collective punishments;

• using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including by impeding relief supplies.

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 Tadic case in 1995 and, in general terms, in the Kupreškic 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.

Composite war crimes

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).

Notes:

[1] ICC Statute, Article 8 (cited in Vol. II, Ch. 44, § 3).

[2] ICTY Statute, Article 1 (ibid., § 11); ICTR Statute, Article 1 (ibid., § 14); Statute of the Special Court for Sierra Leone, Article 1(1) (ibid., § 5); UNTAET Regulation No. 2000/15, Section 6(1) (ibid., § 16).

[3] ICTY, Delalic case, Judgment, (ibid., § 111).

[4] See, e.g., the military manuals of Colombia (ibid., § 21), Croatia (ibid., § 22), France (ibid., §§ 24–25), Italy (ibid., § 30) and Spain (ibid., § 36) and the legislation of Congo (ibid., § 56), New Zealand (ibid., § 70) and Nicaragua (ibid., § 71); see also the reported practice of the Netherlands (ibid., § 93).

[5] Report of the Commission on Responsibility set up after the First World War (ibid., § 6); IMT Charter (Nuremberg), Article 6(b) (ibid., § 1); IMT Charter (Tokyo), Article 5(b) (ibid., § 8); Allied Control Council Law No. 10, Article II (ibid., § 7).

[6] See, e.g., the military manuals of Australia (ibid., § 18), Canada (ibid., § 20), Israel (ibid., § 29), Netherlands (ibid., § 32), New Zealand (ibid., § 33), Nigeria (ibid., § 34), South Africa (ibid., § 35), Switzerland (ibid., § 38), United Kingdom (ibid., § 39) and United States (ibid., §§ 40 and 43) and the legislation of Bangladesh (ibid., § 48), Netherlands (ibid., § 69), Spain (ibid., § 73) and United Kingdom (ibid., § 74); see also the reported practice of the Islamic Republic of Iran (ibid., § 91).

[7] See Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, 2003, pp. 130 and 233.

[8] See, e.g., United States, General Military Government Court at Dachau, Schmid case (cited in Vol. II, Ch. 35, § 111) (the mutilation of the dead body of a prisoner of war and refusal of an honourable burial amounted to a war crime); see also Australia, Military Court at Wewak, Takehiko case (ibid., § 106); Australia, Military Court at Rabaul, Tisato case (ibid., § 107); United States, Military Commission at Yokohama, Kikuchi and Mahuchi case (ibid., § 109); United States, Military Commission at the Mariana Islands, Yochio and Others case (ibid., § 110).

[9] See United States, Military Commission in Florence, Maelzer case (cited in Vol. II, Ch. 32, § 297) (concerning prisoners of war who were forced to march through the streets of Rome as in an ancient triumphal parade); Australia, Military Court at Rabaul, Tanaka Chuichi case (ibid., § 3883) (concerning Sikh prisoners of war who were made to cut their hair and beards and in one instance forced to smoke a cigarette, acts contrary to their religion); see also ICC Statute, Article 8(2)(b)(xxi).

[10] See France, General Tribunal at Rastadt of the Military Government for the French Zone of Occupation in Germany, Roechling case (cited in Vol. II, Ch. 32, § 1861); Netherlands, Temporary Court-Martial of Makassar, Koshiro case (ibid., § 1863); United States, Military Tribunal at Nuremberg, Krauch (I. G. Farben Trial) case (ibid., § 1870); United States, Military Tribunal at Nuremberg, Von Leeb (The High Command Trial) case (ibid., § 1872); see also ICC Statute, Article 8(2)(b)(xv).

[11] See Australia, Military Court at Rabaul, Ohashi case (cited in Vol. II, Ch. 32, § 2957); United States, Military Commission at Shanghai, Sawada case (ibid., § 2961); United States, Military Tribunal at Nuremberg, Altstötter (The Justice Trial) case (ibid., § 2964); see also ICC Statute, Article 8(2)(a)(vi) and (c)(iv).

[12] See ICC Statute, Article 8(2)(b)(xxvi) and (e)(vii).

[13] ICTY, Tadic case, Interlocutory Appeal (cited in Vol. II, Ch. 44, § 106).

[14] See ICTY, Tadic case, Interlocutory Appeal (ibid., § 106).

[15] See ICTY, Tadic case, Judgment (ibid., § 107), Blaškic case, Judgment (ibid., § 112), Kordic and Cerkez case, Judgment (ibid., § 120), Furundžija case, Judgment (ibid., § 110), Delalic case, Judgment (ibid., § 109), Kunarac case, Judgment (ibid., § 113), Kvocka case, Judgment (ibid., § 114), Krnojelac case, Judgment (ibid., § 115), Vasiljevic case, Judgment (ibid., § 116), Naletilic case, Judgment (ibid., § 117), Stakic case, Judgment (ibid., § 118), Galic case, Judgment (ibid., § 119); ICTR, Akayesu case, Judgment (ibid., § 103), Musema case, Judgment (ibid., § 105) and Rutaganda case, Judgment (ibid., § 104).

[16] See, e.g., ICTY, Galic case, Case No. IT-98-29-T, Judgment and Opinion, 5 December 2003, §§ 113–129.

[17] See, e.g., Australia, Military Court at Rabaul, Ohashi case (cited in Vol. II, Ch. 32, § 2957); United Kingdom, Military Court at Wuppertal, Rhode case (ibid., § 2963); United States, Military Commission at Rome, Dostler case (ibid., § 2960); United States, Military Commission at Shanghai, Sawada case (ibid., § 2961) and Isayama case (ibid., § 2962); United States, Military Tribunal at Nuremberg, Altstötter (The Justice Trial) case (ibid., § 2964).

[18] See Australia, Military Court at Wewak, Takehiko case (cited in Vol. II, Ch. 35, § 106); Australia, Military Court at Rabaul, Tisato case (ibid., § 107); United States, Military Commission at Yokohama, Kikuchi and Mahuchi case (ibid., § 109); United States, Military Commission at the Mariana Islands, Yochio and Others case (ibid., § 110); United States, General Military Court at Dachau, Schmid case (ibid., § 111).

[19] See Australia, Military Court at Rabaul, Tanaka Chuichi case (cited in Vol. II, Ch. 32, § 3883).

[20] See United States, Intermediate Military Government Court at Dachau, Hagendorf case (cited in Vol. II, Ch. 18, § 1313).

[21] See, e.g., the legislation of France (cited in Vol. II, Ch. 44, § 60), Netherlands (ibid., § 67) and Norway (ibid., § 72) and the reported practice of Belgium (ibid., § 83).

[22] See, e.g., the legislation of the Democratic Republic of the Congo (ibid., § 55) and the practice of Germany (ibid., §§ 521–524).

[23] UN Commission on Human Rights, Res. 1982/1 (ibid., § 98).

[24] See, e.g., the military manuals of Australia (ibid., § 18), Belgium (ibid., § 19), Canada (ibid., § 20), Ecuador (ibid., § 23), France (ibid., § 26), New Zealand (ibid., § 33), Switzerland (ibid., § 38), United Kingdom (ibid., § 39) and United States (ibid., §§ 40 and 43) and the legislation of Bangladesh (ibid., § 48), Canada (ibid., §§ 51–52), Congo (ibid., § 56), Finland (ibid., § 59), New Zealand (ibid., § 70) and United States (ibid., § 75); see also the draft legislation of Burundi (ibid., § 50).

[25] See the statements of France (ibid., § 87), Germany (ibid., § 90) and United States (ibid., § 95).

[26] ICTY, Tadíc case, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, §§ 94 and 143.

[27] As to the failure to provide a fair trial, see the examples in footnotes 11 and 17. As to the failure to provide food or necessary medical care to prisoners of war, see, e.g., the legislation of Argentina (cited in Vol. II, Ch. 37, § 60), Australia (ibid., § 61), Bangladesh (ibid., § 63), Chile (ibid., § 64), Dominican Republic (ibid., § 65), Ireland (ibid., § 66), Mexico (ibid., § 67), Nicaragua (ibid., § 68), Norway (ibid., § 69), Peru (ibid., § 70), Spain (ibid., § 72) and Uruguay (ibid., § 73).

[28] See Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, 2003, pp. 34–37 and 391–393; see the Second World War trials (cited in Vol. II, Ch. 44, § 78) and United States, District Court for the Central District of California, Leo Handel case (ibid., § 79).

[29] See, e.g., the military manuals of Australia (ibid., § 18), Ecuador (ibid., § 23), New Zealand (ibid., § 33), United Kingdom (ibid., § 39) and United States (ibid., §§ 40 and 43) and the legislation of Moldova (ibid., § 66).

[30] See, e.g., the military manuals of Australia (ibid., § 18), Canada (ibid., § 20) and Switzerland (ibid., § 38).

[31] See, e.g., the military manuals of Ecuador (ibid., § 23), New Zealand (ibid., § 33), United Kingdom (ibid., § 39) and United States (ibid., §§ 40 and 43) and the legislation of Moldova (ibid., § 66); see also Jordan, Draft Military Criminal Code (ibid., § 62).

[32] See, e.g., ICTY, Delalic case, Case No. IT-96-21-T, Judgment, Trial Chamber II, 16 November 1998, §§ 437 and 439.

[33] See the paper prepared by the ICRC relating to the mental element in the common law and civil law systems and to the concepts of mistake of fact and mistake of law in national and international law, circulated, at the request of several States, at the Preparatory Commission for the International Criminal Court, Doc. PCNICC/1999/WGEC/INF.2/Add.4, 15 December 1999, Annex; see also the Elements of Crimes for the International Criminal Court.

[34] ICTY Statute, Article 2; ICC Statute, Article 8(2)(a).

[35] With respect to wilful killing, see, e.g., the legislation referred to in the commentary to Rule 89. With respect to torture or inhuman treatment, see, e.g., the legislation referred to in the commentary to Rule 90. With respect to biological experiments, see, e.g., the legislation referred to in the commentary to Rule 92. With respect to extensive destruction or appropriation of property, not justified by military necessity and carried out unlawfully and wantonly, see, e.g., the legislation referred to in the commentary to Rule 50. With respect to compelling a prisoner of war or other protected person to serve in the forces of a hostile power, see, e.g., the legislation referred to in the commentary to Rule 95. With respect to wilfully depriving a prisoner of war or other protected person of the rights of a fair and regular trial, see, e.g., the legislation referred to in the commentary to Rule 100. With respect to unlawful confinement, see, e.g., the legislation referred to in the commentary to Rule 99. With respect to the taking of hostages, see, e.g., the legislation referred to in the commentary to Rule 96.

[36] See generally Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, 2003.

[37] See, e.g., concerning desecration of the dead, Elements of Crimes for the International Criminal Court, Footnote 49 relating to Article 8(2)(b)(xxi) of the ICC Statute.

[38] ICC Statute, Article 8(2)(b)(ix) and (xxiv).

[39] Additional Protocol I, Article 85(3)(e) and (f).

[40] See, e.g., the practice of Colombia (cited in Vol. II, Ch. 18, § 1235), Costa Rica (ibid., § 282), France (ibid., §§ 1065, 1150, 1241, 1339 and 1407), Georgia (ibid., §§ 1105, 1190, 1368 and 1428), Spain (ibid., §§ 381, 608, 1302 and 1436) and Tajikistan (ibid., §§ 387, 1115, 1204, 1382 and 1439); see also United States, Naval Handbook, § 6.2.5.

[41] Additional Protocol I, Article 85(3) and (4); ICC Statute, Article 8(2)(b).

[42] See legislation (cited in Vol. II, Ch. 1, §§ 217–269), in particular the legislation of Azerbaijan (ibid., §§ 221–222), Indonesia (ibid., § 243) and Italy (ibid., § 245).

[43] See, e.g., the legislation of Armenia (cited in Vol. II, Ch. 4, § 50), Australia (ibid., §§ 51–52), Belarus (ibid., § 53), Belgium (ibid., § 54), Canada (ibid., §§ 57–58), Colombia (ibid., § 59), Congo (ibid., § 60), Cook Islands (ibid., § 61), Cyprus (ibid., § 62), Georgia (ibid., § 64), Germany (ibid., § 65), Ireland (ibid., § 66), Mali (ibid., § 68), Netherlands (ibid., § 69), New Zealand (ibid., §§ 70–71), Niger (ibid., § 73), Norway (ibid., § 74), Spain (ibid., § 75), Sweden (ibid., § 76), United Kingdom (ibid., §§ 78–79) and Zimbabwe (ibid., § 80); see also the draft legislation of Argentina (ibid., § 49), Burundi (ibid., § 56), El Salvador (ibid., § 63), Lebanon (ibid., § 67), Nicaragua (ibid., § 72) and Trinidad and Tobago (ibid., § 77).

[44] ICC Statute, Article 8(2)(b)(iv).

[45] See Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, 2003, pp. 169–173, in particular pp. 169–170.

[46] See, e.g., the legislation of Armenia (cited in Vol. II, Ch. 11, § 279), Australia (ibid., §§ 280–282), Azerbaijan (ibid., § 283), Belarus (ibid., § 284), Belgium (ibid., § 285), Bosnia and Herzegovina (ibid., § 286), Canada (ibid., §§ 288–289), China (ibid., § 290), Congo (ibid., § 291), Cook Islands (ibid., § 292), Croatia (ibid., § 293), Cyprus (ibid., § 294), Czech Republic (ibid., § 295), Estonia (ibid., § 297), Georgia (ibid., § 298), Germany (ibid., § 299), Hungary (ibid., § 300), Ireland (ibid., § 301), Lithuania (ibid., § 304), Mali (ibid., § 305), Netherlands (ibid., § 306–307), New Zealand (ibid., §§ 308–309), Niger (ibid., § 311), Norway (ibid., § 312), Poland (ibid., § 313), Slovakia (ibid., § 314), Slovenia (ibid., § 315), Spain (ibid., § 316), Tajikistan (ibid., § 317), United Kingdom (ibid., §§ 319–320), United States (ibid., § 321), Bolivarian Republic of Venezuela (ibid., § 322), Yugoslavia (ibid., § 323) and Zimbabwe (ibid., § 324); see also the draft legislation of Argentina (ibid., § 278), Burundi (ibid., § 287), El Salvador (ibid., § 296), Jordan (ibid., § 302), Lebanon (ibid., § 303), Nicaragua (ibid., § 310) and Trinidad and Tobago (ibid., § 318).

[47] See, e.g., the legislation of Armenia (cited in Vol. II, Ch. 11, § 133), Australia (ibid., §§ 134–135), Azerbaijan (ibid., § 136), Belarus (ibid., § 137), Belgium (ibid., § 138), Bosnia and Herzegovina (ibid., § 139), Canada (ibid., § 140), Cook Islands (ibid., § 141), Croatia (ibid., § 142), Cyprus (ibid., § 143), Czech Republic (ibid., § 144), Estonia (ibid., § 146), Georgia (ibid., § 147), Germany (ibid., § 148), Hungary (ibid., § 149), Ireland (ibid., § 150), Lithuania (ibid., § 153), Netherlands (ibid., § 154), New Zealand (ibid., § 155), Niger (ibid., § 157), Norway (ibid., § 158), Slovakia (ibid., § 159), Slovenia (ibid., § 160), Spain (ibid., § 161), Tajikistan (ibid., § 162), United Kingdom (ibid., § 163), Yemen (ibid., § 164), Yugoslavia (ibid., § 165) and Zimbabwe (ibid., § 166); see also the draft legislation of Argentina (ibid., § 132), El Salvador (ibid., § 145), Jordan (ibid., § 151), Lebanon (ibid., § 152) and Nicaragua (ibid., § 156).

[48] ICC Statute, Article 8(2)(b)(i) and (ii).

[49] See, e.g., the military manuals of Argentina (cited in Vol. II, Ch. 32, §§ 1432–1433), Australia (ibid., §§ 1434–1435), Belgium (ibid., § 1436), Bosnia and Herzegovina (ibid., § 1437), Burkina Faso (ibid., § 1438), Canada (ibid., § 1439), Ecuador (ibid., § 1440), France (ibid., §§ 1441–1443), Germany (ibid., § 1444), Israel (ibid., § 1445), Italy (ibid., § 1446), Morocco (ibid., § 1447), Netherlands (ibid., § 1448), New Zealand (ibid., § 1449), Nigeria (ibid., §§ 1450–1451), Russian Federation (ibid., § 1452), Senegal (ibid., §§ 1453–1454), South Africa (ibid., § 1455), Spain (ibid., § 1456), Sweden, (ibid., § 1457), Switzerland (ibid., § 1458), United Kingdom (ibid., §§ 1459–1460) and United States (ibid., §§ 1461–1464).

[50] See, e.g., the legislation (cited in Vol. II, Ch. 32, §§ 1465–1533).

[51] See, e.g., the military manuals of Argentina (cited in Vol. II, Ch. 38, §§ 346–347), Australia (ibid., § 348), Canada (ibid., § 349), Croatia (ibid., § 350), Hungary (ibid., § 351), Italy (ibid., § 352), Netherlands (ibid., § 353), New Zealand (ibid., § 354), Spain (ibid., § 355), Sweden (ibid., § 357), Switzerland (ibid., § 357), United Kingdom (ibid., § 358) and United States (ibid., § 359).

[52] See, e.g., the legislation of Armenia (cited in Vol. II, Ch. 38, § 361), Australia (ibid., §§ 362–363), Azerbaijan (ibid., §§ 364–365), Bangladesh (ibid., § 366), Belarus (ibid., § 367), Belgium (ibid., § 368), Bosnia and Herzegovina (ibid., § 369), Canada (ibid., §§ 371–372), Congo (ibid., § 373), Cook Islands (ibid., § 374), Croatia (ibid., § 375), Cyprus (ibid., § 376), Czech Republic (ibid., § 377), Germany ( ibid., § 379), Georgia (ibid., § 380), Ireland (ibid., § 381), Mali (ibid., § 384), Moldova (ibid., § 385), Netherlands (ibid., § 386), New Zealand (ibid., §§ 387–388), Niger (ibid., § 390), Norway (ibid., § 391), Slovakia (ibid., § 392), Slovenia (ibid., § 393), Spain (ibid., § 394), Tajikistan (ibid., § 395), United Kingdom (ibid., §§ 397–398), Yugoslavia (ibid., § 399) and Zimbabwe (ibid., § 400); see also the draft legislation of Argentina (ibid., § 360), Burundi (ibid., § 370), Jordan (ibid., § 382), Lebanon (ibid., § 383) and Trinidad and Tobago (ibid., § 396).

[53] See, e.g., the military manuals of Argentina (cited in Vol. II, Ch. 38, §§ 39–40), Australia (ibid., §§ 41–42), Canada (ibid., § 43), Colombia (ibid., § 44), Croatia (ibid., § 45), Ecuador (ibid., § 46), France (ibid., §§ 47–49), Germany (ibid., § 50), Hungary (ibid., § 51), Italy (ibid., § 52), Netherlands (ibid., § 53), New Zealand (ibid., § 54), Nigeria (ibid., § 55), Philippines (ibid., § 56), South Africa (ibid., § 57), Spain (ibid., § 58), Sweden (ibid., § 59), Switzerland (ibid., § 60), United Kingdom (ibid., § 61) and United States (ibid., §§ 62–64).

[54] See, e.g., the legislation (cited in Vol. II, Ch. 38, §§ 65–156).

[55] See, e.g., China, War Crimes Military Tribunal of the Ministry of National Defence, Takashi Sakai case (cited in Vol. II, Ch. 38, § 159); France, General Tribunal at Rastadt of the Military Government for the French Zone of Occupation in Germany, Roechling case (ibid., § 157); Israel, District Court of Jerusalem, Eichmann case (ibid., § 161); Netherlands, Special Court of Cassation, Zimmermann case (ibid., § 166); Poland, Supreme National Tribunal at Poznan, Greiser case (ibid., § 157); United States, Military Tribunal at Nuremberg, Krauch (I.G. Farben Trial) case (ibid., § 157); United States, Military Tribunal at Nuremberg, Krupp case (ibid., §157); United States, Military Tribunal at Nuremberg, Milch case (ibid., § 157); United States, Military Tribunal at Nuremberg, List (Hostages Trial) case (ibid., § 157); United States, Military Tribunal at Nuremberg, Von Leeb (The High Command Trial) case (ibid., § 157).

[56] See, e.g., the legislation of Argentina (cited in Vol. II, Ch. 12, § 105), Armenia (ibid., § 107), Australia (ibid., §§ 108–109), Azerbaijan (ibid., § 110), Belarus (ibid., § 111), Belgium (ibid., § 112), Bosnia and Herzegovina (ibid., § 113), Bulgaria (ibid., § 114), Canada (ibid., §§ 116–117), Chile (ibid., § 118), China (ibid., § 119), Colombia (ibid., §§ 120–121), Congo (ibid., § 122), Cook Islands (ibid., § 123), Croatia (ibid., § 124), Cuba (ibid., § 125), Cyprus (ibid., § 126), Czech Republic (ibid., § 127), Dominican Republic (ibid., § 128), Estonia (ibid., § 130), Georgia (ibid., § 131), Germany (ibid., § 132), Hungary (ibid., § 133), Ireland (ibid., § 134), Italy (ibid., § 135), Jordan (ibid., § 136), Kyrgyzstan (ibid., § 138), Latvia (ibid., § 139), Lithuania (ibid., § 141), Mali (ibid., § 142), Mexico (ibid., § 143), Netherlands (ibid., §§ 144–145), New Zealand (ibid., §§ 146–147), Nicaragua (ibid., § 148), Niger (ibid., § 150), Norway (ibid., § 151), Paraguay (ibid., § 152), Peru (ibid., § 153), Poland (ibid., § 154), Romania (ibid., § 155), Russian Federation (ibid., § 156), Slovakia (ibid., § 157), Slovenia (ibid., § 158), Spain (ibid., §§ 159–160), Sweden (ibid., § 161), Switzerland (ibid., §§ 162–163), Tajikistan (ibid., § 164), United Kingdom (ibid., §§ 166–167), United States (ibid., § 168), Uruguay (ibid., § 169), Bolivarian Republic of Venezuela (ibid., § 170), Yugoslavia (ibid., § 171) and Zimbabwe (ibid., § 172); see also the draft legislation of Argentina (ibid., § 106), Burundi (ibid., § 115), El Salvador (ibid., § 129), Jordan (ibid., § 137), Lebanon (ibid., § 140), Nicaragua (ibid., § 149) and Trinidad and Tobago (ibid., § 165).

[57] Hague Regulations, Article 27.

[58] Additional Protocol I, Article 85(4)(d).

[59] Hague Convention for the Protection of Cultural Property, Article 8.

[60] Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 15.

[61] ICC Statute, Article 8(2)(b).

[62] See, e.g., ICTY, Blaškic case, Judgment (cited in Vol. II, Ch. 2, § 181) and Kordic and Cerkez case, Judgment (ibid., § 182).

[63] See, e.g., the legislation of Australia (cited in Vol. II, Ch. 2, § 119), Azerbaijan (ibid., § 120), Canada (ibid., § 122), Congo (ibid., § 123), Croatia (ibid., § 124), Estonia (ibid., § 126), Georgia (ibid., § 127), Germany (ibid., § 128), Hungary (ibid., § 129), Ireland (ibid., § 130), Italy (ibid., § 131), Mali (ibid., § 132), Netherlands (ibid., § 133), New Zealand (ibid., § 134), Norway (ibid., § 136), Slovakia (ibid., § 137), Spain (ibid., § 138), United Kingdom (ibid., § 140) and Yemen (ibid., § 141); see also the draft legislation of Argentina (ibid., § 118), Burundi (ibid., § 121), El Salvador (ibid., § 125), Nicaragua (ibid., § 135) and Trinidad and Tobago (ibid., § 139).

[64] Hague Regulations, Article 23(g).

[65] See United States, Military Tribunal at Nuremberg, List (Hostages Trial) case (cited in Vol. II, Ch. 16, § 225) and Von Leeb (The High Command Trial) case (ibid., § 226).

[66] See, e.g., the military manuals of Argentina (cited in Vol. II, Ch. 17, § 9), Australia (ibid., §§ 10–11), Belgium (ibid., § 12), Benin (ibid., § 13), Canada (ibid., § 14), Colombia (ibid., § 15), Croatia (ibid., § 16), France (ibid., §§ 17–18), Germany (ibid., § 19), Hungary (ibid., § 20), Indonesia (ibid., § 21), Israel (ibid., § 22), Kenya (ibid., § 23), Republic of Korea (ibid., § 24), Madagascar (ibid., § 25), Netherlands (ibid., § 26), New Zealand (ibid., § 27), Nigeria (ibid., § 28), Russian Federation (ibid., § 29), Spain (ibid., § 30), Sweden (ibid., § 31), Switzerland (ibid., § 32), Togo (ibid., § 33), United Kingdom (ibid., § 34), United States (ibid., § 35) and Yugoslavia (ibid., § 36).

[67] See, e.g., the legislation of Australia (cited in Vol. II, Ch. 17, §§ 37–38), Azerbaijan (ibid., § 39), Belarus (ibid., § 40), Bosnia and Herzegovina (ibid., § 41), Canada (ibid., § 43), China (ibid., § 44), Congo (ibid., § 45), Côte d’Ivoire (ibid., § 46), Croatia (ibid., § 47), Ethiopia (ibid., § 48), Georgia (ibid., § 49), Germany (ibid., § 50), Ireland (ibid., § 51), Lithuania (ibid., § 52), Mali (ibid., § 53), Netherlands (ibid., §§ 54–55), New Zealand (ibid., § 56), Norway (ibid., § 57), Slovenia (ibid., § 58), United Kingdom (ibid., § 60) and Yugoslavia (ibid., §§ 61–62); see also the draft legislation of Burundi (ibid., § 42) and Trinidad and Tobago (ibid., § 59).

[68] Convention on the Safety of UN and Associated Personnel, Article 9.

[69] See, e.g., the legislation of Australia (cited in Vol. II, Ch. 9, § 15), Azerbaijan (ibid., § 16), Canada (ibid., § 18), Congo (ibid., § 19), Georgia (ibid., § 20), Germany (ibid., § 21), Mali (ibid., § 22), Netherlands (ibid., § 23), New Zealand (ibid., §§ 24–25) and United Kingdom (ibid., §§ 27–28); see also the draft legislation of Burundi (ibid., § 17) and Trinidad and Tobago (ibid., § 26).

[70] ICC Statute, Article 8(2)(b)(iii).

[71] ICC Statute, Article 8(2)(b)(iv).

[72] ICC Statute, Article 8(2)(b)(xx) (cited in Vol. II, Ch. 20, § 405).

[73] See, e.g., the military manuals of Australia (ibid., §§ 408–409), Ecuador (ibid., § 411), Germany (ibid., § 412), Republic of Korea (ibid., § 413), Nigeria (ibid., § 414), South Africa (ibid., § 415), Switzerland (ibid., § 416), United Kingdom (ibid., § 417) and United States (ibid., §§ 418–420).

[74] See, e.g., the legislation of Belarus (ibid., § 422), Bosnia and Herzegovina (ibid., § 423), Bulgaria (ibid., § 424), Colombia (ibid., § 425), Croatia (ibid., § 427), Czech Republic (ibid., § 428), Denmark (ibid., § 429), El Salvador (ibid., § 430), Estonia (ibid., § 431), Ethiopia (ibid., § 432), Finland (ibid., § 433), Hungary (ibid., § 434), Italy (ibid., § 435), Kazakhstan (ibid., § 436), Lithuania (ibid., § 437), Moldova (ibid., § 438), Mozambique (ibid., § 439), New Zealand (ibid., § 440), Nicaragua (ibid., §§ 441–442), Norway (ibid., § 443), Poland (ibid., § 444), Russian Federation (ibid., § 445), Slovakia (ibid., § 446), Slovenia (ibid., § 447), Spain (ibid., §§ 448–449), Sweden (ibid., § 450), Tajikistan (ibid., § 451), Uzbekistan (ibid., § 452), Vietnam (ibid., § 453) and Yugoslavia (ibid., § 454); see also the draft legislation of Argentina (ibid., § 421).

[75] Hague Regulations, Article 23(h).

[76] ICC Statute, Article 8(2)(b)(xiv).

[77] See, e.g., ICTY, Blaškic case, Case No. IT-95-14-T, Judgment, Trial Chamber I, 3 March 2000, § 716; Kordic and Cerkez case, Case No. IT-95-14/2-T, Judgment, Trial Chamber III, 26 February 2001, § 256; see also Karadžic and Mladic case, Review of the Indictments (cited in Vol. II, Ch. 32, § 2364).

[78] See, e.g., ICTY, Aleksovski case, Case No. IT-95-14/1-T, Judgment, Trial Chamber I, 25 June 1999, § 229.

[79] ICC Statute, Article 8(2)(b)(xxiii).

[80] See, e.g., the legislation of Australia (cited in Vol. II, Ch. 32, § 2285), Azerbaijan (ibid., §§ 2286–2287), Bangladesh (ibid., § 2288), Belarus (ibid., § 2289), Canada (ibid., § 2291), Democratic Republic of the Congo (ibid., § 2292), Congo (ibid., § 2293), Germany (ibid., § 2294), Georgia (ibid., § 2295), Ireland (ibid., § 2296), Lithuania (ibid., § 2297), Mali (ibid., § 2298), Netherlands (ibid., § 2299), New Zealand (ibid., § 2300), Norway (ibid., § 2301), Peru (ibid., § 2302), Poland (ibid., § 2303), Tajikistan (ibid., § 2304), United Kingdom (ibid., § 2306) and Yemen (ibid., § 2307); see also the draft legislation of Burundi (ibid., § 2290) and Trinidad and Tobago (ibid., § 2305).

[81] Additional Protocol I, Article 77(2).

[82] See, e.g., the legislation of Australia (cited in Vol. II, Ch. 39, § 407), Azerbaijan (ibid., § 408), Bangladesh (ibid., § 409), Belarus (ibid., §§ 410–411), Canada (ibid., § 413), Colombia (ibid., §§ 414–415), Congo (ibid., § 416), Georgia (ibid., § 418), Germany (ibid., § 419), Ireland (ibid., § 420), Jordan (ibid., § 421), Malawi (ibid., § 422), Malaysia (ibid., § 423), Netherlands (ibid., § 425), New Zealand (ibid., § 426), Norway (ibid., § 427), Philippines (ibid., § 428), Spain (ibid., § 429), Ukraine (ibid., § 431) and United Kingdom (ibid., § 432); see also the draft legislation of Argentina (ibid., § 406), Burundi (ibid., § 412) and Trinidad and Tobago ( ibid., § 430).

[83] See, e.g., the legislation of Australia (cited in Vol. II, Ch. 39, § 529), Belarus (ibid., §§ 530–531), Canada (ibid., § 533), Colombia (ibid., §§ 534–535), Congo (ibid., § 536), Germany (ibid., § 537), Georgia (ibid., § 538), Ireland (ibid., § 539), Jordan (ibid., § 540), Malaysia (ibid., § 541), Mali (ibid., § 542), Netherlands (ibid., § 543), New Zealand (ibid., § 544), Norway (ibid., § 545), Philippines (ibid., § 546) and United Kingdom (ibid., § 548); see also the draft legislation of Burundi (ibid., § 532) and Trinidad and Tobago (ibid., § 547).

[84] See, e.g., the legislation of Armenia (cited in Vol. II, Ch. 32, § 1618), Australia (ibid., §§ 1619–1621), Azerbaijan (ibid., §§ 1622–1623), Bangladesh (ibid., § 1624), Belgium (ibid., § 1625), Bosnia and Herzegovina (ibid., § 1626), Canada (ibid., § 1628), China (ibid., § 1629), Colombia (ibid., § 1630), Congo (ibid., § 1631), Croatia (ibid., § 1632), Estonia (ibid., § 1634), Ethiopia (ibid., § 1635), Georgia (ibid., § 1636), Germany (ibid., § 1637), Republic of Korea (ibid., § 1641), Lithuania (ibid., § 1642), Mali (ibid., § 1643), Mozambique (ibid., § 1644), Netherlands (ibid., §§ 1646–1647), New Zealand (ibid., § 1648), Paraguay (ibid., § 1651), Slovenia (ibid., § 1652), Spain (ibid., § 1654), United Kingdom (ibid., § 1656) and Yugoslavia (ibid., §§ 1657–1658); see also the draft legislation of Argentina (ibid., § 1617), Burundi (ibid., § 1627) and Trinidad and Tobago (ibid., § 1655).

[85] See, e.g., ICTY, Nikolic case, Review of the Indictment (cited in Vol. II, Ch. 32, § 1729), Delalic case, Judgment (ibid., § 1731), Furundžija case, Judgment and Judgment on Appeal, (ibid., §§ 1732–1733) and Kunarac case, Judgment (ibid., § 1734).

[86] ICC Statute, Article 8(2)(b)(xxii).

[87] See Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, 2003, pp. 329–330.

[88] See Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, 2003, pp. 331–332.

[89] See, e.g., the legislation of Armenia (cited in Vol. II, Ch. 32, § 1815), Australia (ibid., § 1818), Belgium (ibid., § 1823), Canada (ibid., § 1826), China (ibid., § 1827), Congo (ibid., § 1829), Croatia (ibid., § 1831), France (ibid., § 1833), Ireland (ibid., § 1834), Kenya (ibid., § 1837), Mali (ibid., § 1841), Netherlands (ibid., § 1842), New Zealand (ibid., § 1844), Niger (ibid., § 1846), Norway (ibid., § 1847), Philippines (ibid., § 1849), United Kingdom (ibid., § 1853) and United States (ibid., §§ 1854–1855); see also the draft legislation of Burundi (ibid., § 1825) and Trinidad and Tobago (ibid., § 1851).

[90] IMT Charter (Nuremberg), Article 6 (ibid., § 1759).

[91] See, e.g., Canada, Federal Court of Appeal, Rudolph and Minister of Employment and Immigration case (ibid., § 1859); Netherlands, Special Court of Cassation, Rohrig and Others case (ibid., § 1864); Poland, Supreme National Tribunal of Poland at Poznan, Greiser case (ibid., § 1865); United States, Military Tribunal at Nuremberg, List (Hostages Trial) case (ibid., § 1868), Milch case (ibid., § 1869), Krauch (I. G. Farben Trial) case (ibid., § 1870) and Krupp case (ibid., § 1871).

[92] See, e.g., the legislation of Argentina (cited in Vol. II, Ch. 32, § 3776), Australia (ibid., § 3777), Bangladesh (ibid., § 3778), Bosnia and Herzegovina (ibid., § 3779), China (ibid., § 3780), Democratic Republic of the Congo (ibid., § 3781), Côte d’Ivoire (ibid., § 3782), Croatia (ibid., § 3783), Ethiopia (ibid., § 3784), Ireland (ibid., § 3785), Italy (ibid., § 3786), Kyrgyzstan (ibid., § 3787), Lithuania (ibid., § 3788), Norway (ibid., § 3789), Romania (ibid., § 3790), Slovenia (ibid., § 3791), Spain (ibid., § 3792) and Yugoslavia (ibid., § 3793).

[93] Italy, Military Tribunal of Rome, Priebke case (cited in Vol. II, Ch. 32, § 3795).

[94] United States, Military Tribunal at Nuremberg, Pohl case (cited in Vol. II. Ch. 35, § 235).

[95] See, e.g., the legislation of Albania (ibid., § 165), Algeria (ibid., § 166), Argentina (ibid., § 167), Armenia (ibid., § 168), Australia (ibid., § 169), Azerbaijan (ibid., § 170), Bangladesh (ibid., § 171), Bosnia and Herzegovina (ibid., § 172), Botswana (ibid., § 173), Bulgaria (ibid., § 174), Burkina Faso (ibid., § 175), Canada (ibid., § 176), Chad (ibid., § 177), Chile (ibid., § 178), Colombia (ibid., § 179), Côte d’Ivoire (ibid., § 180), Croatia (ibid., § 181), Cuba (ibid., § 182), Czech Republic (ibid., § 183), Denmark (ibid., § 184), Egypt (ibid., §§ 185–186), El Salvador (ibid., § 187), Ethiopia (ibid., § 188), France (ibid., § 189), Gambia (ibid., § 190), Georgia (ibid., § 191), Ghana (ibid., § 192), Guinea (ibid., § 193), Hungary (ibid., § 194), Indonesia (ibid., § 195), Iraq (196), Ireland (ibid., § 197), Italy (ibid., § 198), Kazakhstan (ibid., § 199), Kenya (ibid., § 200), Republic of Korea (ibid., § 201), Latvia (ibid., § 202), Lebanon (ibid., § 203), Lithuania (ibid., § 204), Malaysia (ibid., § 205), Mali (ibid., § 206), Moldova (ibid., § 207), Netherlands (ibid., § 208), New Zealand (ibid., § 209), Nicaragua (ibid., §§ 210–211), Nigeria (ibid., § 212), Norway (ibid., § 213) Romania (ibid., § 214), Singapore (ibid., § 215), Slovakia (ibid., § 216), Slovenia (ibid., § 217), Spain (ibid., §§ 218–219), Switzerland (ibid., § 220), Tajikistan (ibid., § 221), Togo (ibid., § 222), Trinidad and Tobago (ibid., § 223), Uganda (ibid., § 224), Ukraine (ibid., § 225), United Kingdom (ibid., §§ 226–227), Uruguay (ibid., § 228), Bolivarian Republic of Venezuela (ibid., § 229), Vietnam (ibid., § 230), Yemen (ibid., § 231), Yugoslavia (ibid., § 232), Zambia (ibid., § 233) and Zimbabwe (ibid., § 234).

[96] 1906 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Article 28.

[97] See, e.g., the military manuals of Burkina Faso (cited in Vol. II, Ch. 34, § 417), Cameroon (ibid., § 418), Canada (ibid., § 420), Congo (ibid., § 422), France (ibid., § 423), Israel (ibid., § 425), Italy (ibid., § 426), Lebanon (ibid., § 428), Mali (ibid., § 429), Morocco (ibid., § 430), Philippines (ibid., § 434) (“mistreat”), Romania (ibid., § 435), Senegal (ibid., § 436), Switzerland (ibid., § 437), United Kingdom (ibid., § 438) and United States (ibid., § 442) (“mistreating”).

[98] See, e.g., the military manuals of Australia (cited in Vol. II, Ch. 19, §§ 161–162), Canada (ibid., § 167), Ecuador (ibid., § 169), Republic of Korea (ibid., § 175), New Zealand (ibid., § 179), Nigeria (ibid., § 180), South Africa (ibid., § 185), Switzerland (ibid., § 189), United Kingdom (ibid., § 190) and United States (ibid., §§ 192–195).

[99] See, e.g., the legislation of Argentina (cited in Vol. II, Ch. 19, § 197), Bosnia and Herzegovina (ibid., § 199), Chile (ibid., § 200), Croatia (ibid., § 201), Dominican Republic (ibid., § 202), Ecuador (ibid., § 203), El Salvador (ibid., § 204), Estonia (ibid., § 205), Ethiopia (ibid., § 206), Hungary (ibid., § 207), Italy (ibid., § 208), Mexico (ibid., §§ 209–210), Nicaragua (ibid., § 211), Peru (ibid., § 212), Slovenia (ibid., § 213), Spain (ibid., §§ 214–216), Switzerland (ibid., § 217), Bolivarian Republic of Venezuela (ibid., §§ 218–219) and Yugoslavia (ibid., § 220); see also the draft legislation of Argentina (ibid., § 198).

[100] Additional Protocol I, Article 85(4)(b).

[101] See, e.g., the legislation of Australia (cited in Vol. II, Ch. 37, §§ 664–665), Azerbaijan (ibid., § 666), Belarus (ibid., § 668), Belgium (ibid., § 669), Canada (ibid., § 671), Cook Islands (ibid., § 672), Croatia (ibid., § 673), Cyprus (ibid., § 674), Czech Republic (ibid., § 675), Estonia (ibid., § 677), Georgia (ibid., § 678), Germany (ibid., § 679), Hungary (ibid., § 680), Ireland (ibid., § 681), Lithuania (ibid., § 684), Moldova (ibid., § 685), New Zealand (ibid., § 687), Niger (ibid., § 689), Norway (ibid., § 690), Slovakia (ibid., § 691), Slovenia (ibid., § 692), Spain (ibid., § 693), Tajikistan (ibid., § 694), United Kingdom (ibid., § 695), Yugoslavia (ibid., § 696) and Zimbabwe (ibid., § 697); see also the draft legislation of Argentina (ibid., § 662), El Salvador (ibid., § 676), Jordan (ibid., § 682), Lebanon (ibid., § 683) and Nicaragua (ibid., § 688).

[102] Additional Protocol I, Article 85(4)(c).

[103] See, e.g., the legislation of Australia (cited in Vol. II, Ch. 32, §§ 601–602), Azerbaijan (ibid., § 603), Belgium (ibid., § 604), Bulgaria (ibid., § 605), Canada (ibid., § 607), Colombia (ibid., § 609), Cook Islands (ibid., § 611), Cyprus (ibid., § 612), Czech Republic (ibid., § 613), Georgia (ibid., § 615), Hungary (ibid., § 616), Ireland (ibid., § 617), Moldova (ibid., § 621), New Zealand (ibid., § 623), Niger (ibid., § 626), Norway (ibid., § 627), Peru (ibid., § 628), Slovakia (ibid., § 629), Spain (ibid., § 630), Tajikistan (ibid., § 631), United Kingdom (ibid., § 633) and Zimbabwe (ibid., § 635); see also the draft legislation of El Salvador (ibid., § 614), Jordan (ibid., § 618), Lebanon (ibid., § 619) and Nicaragua (ibid., § 625).

[104] See, e.g., the legislation of Armenia (cited in Vol. II, Ch. 3, § 33), Australia (ibid., § 34), Belarus (ibid., § 35), Belgium (ibid., § 36), Bosnia and Herzegovina (ibid., § 37), Canada (ibid., § 38), China (ibid., § 39), Colombia (ibid., § 40), Cook Islands (ibid., § 41), Croatia (ibid., § 42), Cyprus (ibid., § 43), Estonia (ibid., § 45), Georgia (ibid., § 46), Indonesia (ibid., § 47), Ireland (ibid., § 48), Lithuania (ibid., § 51), Netherlands (ibid., § 52), New Zealand (ibid., § 53), Niger (ibid., § 55), Norway (ibid., § 56), Slovenia (ibid., § 57), Spain (ibid., § 58), Sweden (ibid., § 59), Tajikistan (ibid., § 60), United Kingdom (ibid., § 61), Yugoslavia (ibid., § 629) and Zimbabwe (ibid., § 63); see also the draft legislation of Argentina (ibid., § 33), El Salvador (ibid., § 44), Jordan (ibid., § 49), Lebanon (ibid., § 50) and Nicaragua (ibid., § 54).

[105] See ICJ, Nuclear Weapons case, Advisory Opinion (cited in Vol. II, Ch. 3, § 243); ICTY, Galic case, Case No. IT-98-29-T, Judgment and Opinion, 5 December 2003, § 57 (“indiscriminate attacks, that is to say, attacks which strike civilians or civilian objects and military objectives without distinction, may qualify as direct attacks against civilians”), with further references to the Blaškic case, Judgment, and the Martic case, Review of the Indictment; see also Tadic case, Interlocutory Appeal (cited in Vol. II, Ch. 3, § 134), Karadžic and Mladic case, Review of the Indictments (ibid., § 135), Kordic and Cerkez case, Decision on the Joint Defence Motion (ibid., § 136) and Kupreškic case, Judgment (ibid., § 137).

[106] ICC Statute, Article 30(2)(b).

[107] Additional Protocol I, Article 85(3)(b).

[108] Additional Protocol I, Article 85(3)(c).

[109] It should be noted that an attack, intentionally directed against a work or installation which does not constitute a military objective, would constitute the war crime of making civilian objects the object of attack, independent of the civilian casualties or damage caused.

[110] ICC Statute, Article 8(2)(b)(iv).

[111] ICTR Statute, Article 4; Statute of the Special Court for Sierra Leone, Article 3; ICC Statute, Article 8(2)(c); see, e.g., ICTY, Tadic case, Interlocutory Appeal (cited in Vol. II, Ch. 32, § 928); ICTY, Jelisic case, Judgment (ibid., § 934).

[112] Elements of Crimes for the International Criminal Court (relating to Article 8(2)(c) of the ICC Statute); ICTY, Delalic case, Case No. IT-96-21-T, Judgment, Trial Chamber II, 16 November 1998, §§ 422–423 (in relation to murder), § 552 (in relation to cruel treatment), § 443 (in relation to torture) and § 187 (in relation to the taking of hostages).

[113] See ICTY, Tadic case, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, §§ 100–118 and Martic case, Case No. IT-95-11-R61, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Trial Chamber I, 8 March 1996, § 11.

[114] ICTR Statute, Article 4.

[115] See, e.g., the legislation of Armenia (cited in Vol. II, Ch. 1, § 218), Australia (ibid., § 220), Azerbaijan (ibid., §§ 221–222), Belarus (ibid., § 223), Belgium (ibid., § 224), Bosnia and Herzegovina (ibid., § 225), Canada (ibid., § 228), Colombia (ibid., § 230), Democratic Republic of the Congo (ibid., § 231), Congo (ibid., § 232), Croatia (ibid., § 234), Estonia (ibid., § 239), Georgia (ibid., § 240), Germany (ibid., § 241), Ireland (ibid., § 244), Lithuania (ibid., § 248), Netherlands (ibid., § 250), New Zealand (ibid., § 252), Niger (ibid., § 254), Norway (ibid., § 255), Slovenia (ibid., § 257), Spain (ibid., § 259), Sweden (ibid., § 260), Tajikistan (ibid., § 261), United Kingdom (ibid., § 265), Vietnam (ibid., § 266), Yemen (ibid., § 267) and Yugoslavia (ibid., § 268); see also the legislation of Czech Republic (ibid., § 237), Hungary (ibid., § 242), Italy (ibid., § 245) and Slovakia (ibid., § 256), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina (ibid., § 217), Burundi (ibid., § 226), El Salvador (ibid., § 238), Jordan (ibid., § 246), Nicaragua (ibid., § 253) and Trinidad and Tobago (ibid., § 262).

[116] See ICTY, Jelisic case, Case No. IT-95-10-T, Judgment, Trial Chamber I, 14 December 1999, § 49.

[117] See, e.g., the legislation of Australia (cited in Vol. II, Ch. 16, § 559), Azerbaijan (ibid., § 561), Bosnia and Herzegovina (ibid., § 563), Canada (ibid., §§ 569–570), Colombia (ibid., § 576), Democratic Republic of the Congo (ibid., § 577), Congo (ibid., § 578), Croatia (ibid., § 580), Ecuador (ibid., § 582) El Salvador (ibid., §§ 584–585), Estonia (ibid., § 586), Ethiopia (ibid., § 587), Gambia (ibid., § 589), Georgia (ibid., § 590), Germany (ibid., § 591), Ghana (ibid., § 592), Guinea (ibid., § 593), Ireland (ibid., § 599), Kazakhstan (ibid., § 605), Kenya (ibid., § 606), Latvia (ibid., § 608), Moldova (ibid., § 614), Netherlands (ibid., § 620), New Zealand (ibid., §§ 621–622), Nicaragua (ibid., § 623), Nigeria (ibid., § 624), Norway (ibid., § 625), Paraguay (ibid., § 627), Russian Federation (ibid., § 631), Singapore (ibid., § 633), Slovenia (ibid., § 635), Spain (ibid., §§ 637–638), Switzerland (ibid., § 642), Tajikistan (ibid., § 643), Trinidad and Tobago (ibid., § 645), Uganda (ibid., § 648), Ukraine (ibid., § 649), United Kingdom (ibid., § 652), Uzbekistan (ibid., § 657), Bolivarian Republic of Venezuela (ibid., § 658), Yemen (ibid., § 661), Yugoslavia (ibid., § 663), Zambia (ibid., § 664) and Zimbabwe (ibid., § 665); see also the legislation of Bulgaria (ibid., § 565), Burkina Faso (ibid., § 566), Czech Republic (ibid., § 581), Hungary (ibid., § 594), Italy (ibid., §§ 602–603), Republic of Korea (ibid., § 607), Mozambique (ibid., § 616), Paraguay (ibid., § 626), Peru (ibid., § 628), Slovakia (ibid., § 634) and Togo (ibid., § 644), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina (ibid., § 556), Burundi (ibid., § 567) and Trinidad and Tobago (ibid., § 646).

[118] ICC Statute, Article 8(2)(e)(vi).

[119] ICTR Statute, Article 4(e) (cited in Vol. II, Ch. 32, § 1577); Statute of the Special Court for Sierra Leone, Article 3(e) (ibid., § 1569).

[120] See ICTY, Furundžija case, Judgment (cited in Vol. II, Ch. 32, § 1733) and Kunarac case, Judgment (ibid., § 1734).

[121] See, e.g., the legislation of Armenia (cited in Vol. II, Ch. 32, § 1618), Australia (ibid., §§ 1620–1621), Azerbaijan (ibid., §§ 1622–1623), Bangladesh (ibid., § 1624), Belgium (ibid., § 1625), Bosnia and Herzegovina (ibid., § 1626), Canada (ibid., § 1628), Colombia (ibid., § 1630), Congo (ibid., § 1631), Croatia (ibid., § 1632), Estonia (ibid., § 1634), Ethiopia (ibid., § 1635), Georgia (ibid., § 1636), Germany (ibid., § 1637), Lithuania (ibid., § 1642), Netherlands (ibid., § 1647), New Zealand (ibid., § 1648), Slovenia (ibid., § 1652), Spain (ibid., § 1654), United Kingdom (ibid., § 1656) and Yugoslavia (ibid., § 1658); see also the legislation of the Republic of Korea (ibid., 1641), Mozambique (ibid., § 1644) and Paraguay (ibid., 1651), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina (ibid., § 1617), Burundi (ibid., § 1627) and Trinidad and Tobago (ibid., § 1655).

[122] Additional Protocol II, Article 17.

[123] ICC Statute, Article 8(2)(e)(viii).

[124] See, e.g., the legislation of Armenia (cited in Vol. II, Ch. 38, § 66), Australia (ibid., § 69), Azerbaijan (ibid., § 70), Belarus (ibid., § 73), Belgium (ibid., § 74), Bosnia and Herzegovina (ibid., § 75), Bulgaria (ibid., § 77), Cambodia (ibid., § 79), Canada (ibid., § 81), China (ibid., § 82), Colombia (ibid., § 84), Democratic Republic of the Congo (ibid., § 85), Congo (ibid., § 86), Côte d’Ivoire (ibid., § 88), Croatia (ibid., § 89), Czech Republic (ibid., § 92), Estonia (ibid., § 95), Ethiopia (ibid., § 96), Georgia (ibid., § 99), Germany (ibid., § 100), India (ibid., § 103), Ireland (ibid., § 104), Kazakhstan (ibid., § 108), Latvia (ibid., § 110), Mali (ibid., § 117), Moldova (ibid., § 120), New Zealand (ibid., § 124), Nicaragua (ibid., § 125), Niger (ibid., § 127), Norway (ibid., § 129), Paraguay (ibid., § 131), Poland (ibid., § 133), Portugal (ibid., § 134), Romania (ibid., § 135), Russian Federation (ibid., § 136), Slovakia (ibid., § 139), Slovenia (ibid., § 140), Spain (ibid., § 141), Tajikistan (ibid., § 143), United Kingdom (ibid., § 148), Uzbekistan (ibid., § 152) and Yugoslavia (ibid., § 154); see also the draft legislation of Argentina (ibid., § 65), Burundi (ibid., § 78), El Salvador (ibid., § 94) and Trinidad and Tobago (ibid., § 144).

[125] See UN Security Council, Res. 752 (cited in Vol. II, Ch. 38, § 193), Res. 822, 874 and 884 (ibid., § 195) and Res. 918 (ibid., § 196); UN Security Council, Statements by the President (ibid., §§ 200–203); UN General Assembly, Res. 46/134 (ibid., § 208) and Res. 50/193 (ibid., § 210); UN Commission on Human Rights, Res. 1994/87 (ibid., § 211), Res. 1995/77 (ibid., § 212) and Res. 1996/73 (ibid., § 213).

[126] Additional Protocol II, Article 5(2)(e).

[127] ICC Statute, Article 8(2)(e)(xi).

[128] See, e.g., the legislation of Australia (cited in Vol. II, Ch. 32, § 1468), Azerbaijan (ibid., §§ 1469–1470), Belarus (ibid., § 1473), Belgium (ibid., § 1474), Bosnia and Herzegovina (ibid., § 1475), Bulgaria (ibid., § 1477), Cambodia (ibid., § 1479), Canada (ibid., § 1480), Colombia (ibid., § 1482), Congo (ibid., § 1483), Côte d’Ivoire (ibid., § 1485), Croatia (ibid., § 1486), Ethiopia (ibid., § 1490), Georgia (ibid., § 1491), Germany (ibid., § 1492), Ireland (ibid., § 1494), Lithuania (ibid., § 1498), Mali (ibid., § 1502), Moldova (ibid., § 1504), New Zealand (ibid., § 1507), Niger (ibid., § 1510), Norway (ibid., § 1512), Paraguay (ibid., § 1514), Poland (ibid., § 1515), Romania (ibid., § 1516), Slovenia (ibid., § 1519), Spain (ibid., §§ 1520–1521), Tajikistan (ibid., § 1523) and Thailand (ibid., § 1524); see also the legislation of the United Kingdom (ibid., § 1528), Yemen (ibid., § 1531) and Yugoslavia (ibid., § 1532), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina (ibid., § 1464), Burundi (ibid., § 1478), El Salvador (ibid., § 1489), Jordan (ibid., § 1495), Lebanon (ibid., § 1497), Nicaragua (ibid., § 1509) and Trinidad and Tobago (ibid., § 1525).

[129] ICC Statute, Article 8(2)(e)(xi).

[130] See, e.g., the legislation of Australia (cited in Vol. II, Ch. 15, § 56), Bosnia and Herzegovina (ibid., § 57), Canada (ibid., § 59), Congo (ibid., § 61), Croatia (ibid., § 62), Ethiopia (ibid., § 63), Georgia (ibid., § 64), Germany (ibid., § 65), Ireland (ibid., § 66), Netherlands (ibid., § 71), New Zealand (ibid., § 72), Norway (ibid., § 73), Slovenia (ibid., § 74), United Kingdom (ibid., § 75) and Yugoslavia (ibid., § 79); see also the legislation of Italy (ibid., § 67), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Burundi (ibid., § 57) and Trinidad and Tobago (ibid., § 76).

[131] Additional Protocol II, Articles 9 and 11.

[132] ICC Statute, Article 8(2)(e)(ii).

[133] See Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, 2003, pp. 447–451.

[134] See, e.g., the legislation of Croatia (cited in Vol. II, Ch. 7, § 340), Estonia (ibid., § 342), Georgia (ibid., § 343), Ireland (ibid., § 344), Nicaragua (ibid., § 346), Norway (ibid., § 438), Poland (ibid., § 349), Slovenia (ibid., § 350), Spain (ibid., §§ 351–352), Tajikistan (ibid., § 353), Yugoslavia (ibid., § 354); see also the legislation of Italy (ibid., § 345), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina (ibid., § 338), El Salvador (ibid., § 341) and Nicaragua (ibid., § 347).

[135] See the final reports of the UN Commissions of Experts Established pursuant to Security Council Resolution 780 (1992) (cited in Vol. II, Ch. 7, §§ 144 and 546) and to UN Security Council, Res. 935 (1994) (ibid., § 145).

[136] See, e.g., the legislation of Argentina (cited in Vol. II, Ch. 7, § 453), Australia ( ibid., §§ 455–456), Azerbaijan (ibid., § 457), Bosnia and Herzegovina (ibid., § 459), Canada (ibid., § 461), Chile (ibid., § 462), Colombia (ibid., § 464), Congo (ibid., § 465), Croatia (ibid., § 466), Cuba (ibid., § 467), Dominican Republic (ibid., § 468), Estonia (ibid., §§ 471 and 716), Georgia (ibid., §§ 473 and 717), Germany (ibid., §§ 474 and 718), Guatemala (ibid., § 475), Iraq (ibid., § 476), Ireland (ibid., §§ 477 and 719), Lithuania (ibid., §§ 479 and 721), Mexico (ibid., § 480), Netherlands (ibid., § 482), New Zealand (ibid., § 483), Nicaragua (ibid., §§ 484 and 722), Norway (ibid., §§ 486 and 724), Peru (ibid., § 487), Poland (ibid., § 489), Portugal (ibid., § 490), Romania (ibid., §§ 491 and 725), Slovenia (ibid., § 492), Spain (ibid., §§ 493 and 726), Sweden (ibid., § 494), Tajikistan (ibid., §§ 495 and 728), United Kingdom (ibid., § 498), Bolivarian Republic of Venezuela (ibid., §§ 501 and 729) and Yugoslavia (ibid., § 502); see also the draft legislation of Argentina (ibid., §§ 454 and 712), Burundi (ibid., § 460), El Salvador (ibid., §§ 470 and 715), Nicaragua (ibid., §§ 485 and 723) and Trinidad and Tobago (ibid., § 496).

[137] See, e.g., UN Security Council, Res. 771 (cited in Vol. II, Ch. 7, § 534) and Res. 794 (ibid., § 535); UN General Assembly, Res. 40/139 (ibid., § 538) and Res. 41/157 (ibid., § 538); UN Commission on Human Rights, Res. 1992/S-1/1 (ibid., § 542).

[138] ICC Statute, Article 8(2)(e)(vii).

[139] Statute of the Special Court for Sierra Leone, Article 4(c).

[140] Additional Protocol II, Article 4(3)(c).

[141] Convention on the Rights of the Child, Article 33(3).

[142] See, e.g., the statements of Italy (cited in Vol. II, Ch. 39, § 559) and United States (ibid., § 569); UN Security Council, Res. 1071 and 1083 (ibid., § 572); UN Security Council, Statement by the President (ibid., § 576); UN Commission on Human Rights, Res. 1998/63 (ibid., § 464), Res. 1998/75 (ibid., § 465) and Res. 1998/82 (ibid., § 467).

[143] See supra footnotes 82 and 83.

[144] Additional Protocol II, Article 16.

[145] ICC Statute, Article 8(2)(e)(iv).

[146] Hague Convention for the Protection of Cultural Property, Articles 19 and 28.

[147] Second Protocol to the Hague Convention for the Protection of Cultural Property, Articles 15(1) and 22.

[148] See, e.g., the practice of Cape Verde (cited in Vol. II, Ch. 12, § 181), Croatia (ibid., § 185), Germany (ibid., § 194), Islamic Republic of Iran (ibid., § 202), Pakistan (ibid., § 215), United Arab Emirates (ibid., § 219) and Yugoslavia (ibid., §§ 237–239); UN General Assembly, Res. 47/147, 49/196 and 50/193 (ibid., § 245); UN Commission on Human Rights, Res. 1994/72 (ibid., § 248) and Res. 1998/70 (ibid., § 249); UNESCO, General Conference, Res. 4.8 (ibid., § 251); OIC, Res. 1/5-EX (ibid., § 261).

[149] See, e.g., the legislation of Argentina (cited in Vol. II, Ch. 12, § 105), Australia (ibid., §§ 108–109), Azerbaijan (ibid., § 110), Belarus (ibid., § 111), Belgium (ibid., § 112), Bosnia and Herzegovina (ibid., § 113), Bulgaria (ibid., § 114), Canada (ibid., §§ 116–117), Chile (ibid., § 118), Colombia §§ 120–121), Congo (ibid., § 122), Croatia (ibid., § 124), Cuba (ibid., § 125), Czech Republic (ibid., § 127), Dominican Republic (ibid., § 128), Estonia (ibid., § 130), Georgia (ibid., § 131), Germany (ibid., § 132), Hungary (ibid., § 133), Ireland (ibid., § 134), Kyrgyzstan (ibid., § 138), Latvia (ibid., § 139), Lithuania (ibid., § 141), Mexico (ibid., § 143), New Zealand (ibid., § 147), Nicaragua (ibid., § 148), Niger (ibid., § 150), Norway (ibid., § 151), Paraguay (ibid., § 152), Peru (ibid., § 153), Poland (ibid., § 154), Romania (ibid., § 155), Russian Federation (ibid., § 156), Slovakia (ibid., § 157), Slovenia (ibid., § 158), Spain (ibid., §§ 159–160), Sweden (ibid., § 161), Switzerland (ibid., §§ 162–163), Tajikistan (ibid., § 164), United Kingdom (ibid., § 167), Uruguay (ibid., § 169), Bolivarian Republic of Venezuela (ibid., § 170) and Yugoslavia (ibid., § 171); see also the draft legislation of Argentina (ibid., § 106), Burundi (ibid., § 115), El Salvador (ibid., § 129), Jordan (ibid., § 137), Nicaragua (ibid., § 149) and Trinidad and Tobago (ibid., § 165).

[150] ICTY Statute, Article 3(d).

[151] ICTY, Tadic case, Interlocutory Appeal (cited in Vol. II, Ch. 12, § 268).

[152] ICC Statute, Article 8(2)(e).

[153] ICC Statute, Article 8(2)(e)(xii),

[154] See e.g. the military manuals of Benin, Croatia, Germany, Nigeria, Philippines and Togo (cited in Vol. II, Ch. 2, § 7), Benin, Colombia, Croatia, Ecuador, Germany, Italy, Kenya, Lebanon, Madagascar, South Africa, Togo and Yugoslavia (ibid., § 115).

[155] See, e.g., the legislation of Australia (cited in Vol. II, Ch. 2, § 119), Azerbaijan (ibid., § 120), Canada (ibid., § 122), Congo (ibid., § 123), Croatia (ibid., § 124), Estonia (ibid., § 126), Georgia (ibid., § 127), Germany (ibid., § 128), New Zealand (ibid., § 134), Norway (ibid., § 136), Spain (ibid., § 138) and United Kingdom (ibid., § 140); see also the legislation of Hungary (ibid., § 129), Italy (ibid., § 131) and Slovakia (ibid., § 137), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina (ibid., § 118), Burundi (ibid., § 121), El Salvador (ibid., § 125), Nicaragua (ibid., § 135) and Trinidad and Tobago (ibid., § 139).

[156] ICTY, Blaškic case, Judgment (cited in Vol. II, Ch. 2, § 181).

[157] ICC Statute, Article 8(2)(e)(xii).

[158] ICTY Statute, Article 3(e).

[159] ICTY, Jelisic case, Judgment (cited in Vol. II, Ch. 16, § 740).

[160] See, e.g., the legislation of Armenia (cited in Vol. II, Ch. 16, § 122), Australia (ibid., § 125), Azerbaijan (ibid., § 126), Belarus (ibid., § 129), Belgium (ibid., § 130), Bosnia and Herzegovina (ibid., § 131), Cambodia (ibid., § 135), Canada (ibid., § 138), Congo (ibid., § 142), Croatia (ibid., § 144), El Salvador (ibid., §§ 149–150), Estonia (ibid., § 151), Georgia (ibid., § 154), Germany (ibid., § 155), Latvia (ibid., § 166), Lithuania (ibid., § 168), Moldova (ibid., § 177), Netherlands (ibid., § 180), New Zealand (ibid., § 182), Nicaragua (ibid., § 184), Niger (ibid., § 185), Portugal (ibid., § 193), Slovenia (ibid., § 199), Spain (ibid., §§ 200–201), Tajikistan (ibid., § 205), United Kingdom (ibid., § 211), Uzbekistan (ibid., § 215) and Yugoslavia (ibid., § 219); see also the legislation of Bulgaria (ibid., § 133), Czech Republic (ibid., § 147), Italy (ibid., §§ 161–162), Mozambique (ibid., § 178), Nicaragua (ibid., § 183), Paraguay (ibid., § 190), Peru (ibid., § 191), Romania (ibid., § 194) and Slovakia (ibid., § 198), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina (ibid., § 121), Burundi (ibid., § 134), Jordan (ibid., § 164) and Trinidad and Tobago (ibid., § 206).

[161] Statute of the Special Court for Sierra Leone, Article 4; ICC Statute, Article 8(2)(e)(iii).

[162] See supra footnote 69.

[163] ICC Statute, Article 8(2)(e)(ix).

[164] See, e.g., the legislation of Argentina (cited in Vol. II, Ch. 18, § 1267), Azerbaijan (ibid., § 1270), Belgium (ibid., § 1271), Bolivia (ibid., § 1272), Bosnia and Herzegovina (ibid., § 964), Canada (ibid., § 1274), Colombia (ibid., § 1275), Congo (ibid., §§ 968 and 1276), Costa Rica (ibid., § 1278), Croatia (ibid., § 969), Ethiopia (ibid., § 1282), Georgia (ibid., §§ 970 and 1283), Germany (ibid., §§ 971 and 1284), Guatemala (ibid., § 1285), Kyrgyzstan (ibid., § 1289), Liechtenstein (ibid., § 1291), Moldova (ibid., §§ 1293–1294), New Zealand (ibid., § 976), Niger (ibid., § 1300), Norway (ibid., §§ 977 and 1301), Slovenia (ibid., § 978), Spain (ibid., § 1302), Sweden (ibid., §§ 979 and 1303), Switzerland (ibid., § 1304), Tajikistan (ibid., § 1305), Togo (ibid., § 1306), United Kingdom (ibid., § 981), Yemen (ibid., § 1310) and Yugoslavia (ibid., § 983); see also the draft legislation of Burundi (ibid., § 966), El Salvador (ibid., § 1280), Jordan (ibid., § 1282), Lebanon (ibid., § 1290), Nicaragua (ibid., § 1298) and Trinidad and Tobago (ibid., § 980).

[165] ICTY, Tadic case, Interlocutory Appeal (cited in Vol. II, Ch. 18, §§ 920 and 1503).

[166] Chemical Weapons Convention, Articles I(1)(b) and VII(1)(a); Amended Protocol II to the Convention on Certain Conventional Weapons, Articles 3 and 14; Ottawa Convention, Articles 1 and 9.

[167] See, e.g., the military manuals of Australia (cited in Vol. II, Ch. 20, § 408), Ecuador (ibid., § 411), Germany (ibid., § 412), Republic of Korea (ibid., § 413) and South Africa (ibid., § 415).

[168] See, e.g., the legislation of Belarus (cited in Vol. II, Ch. 20, § 422) (limited to weapons “prohibited by international treaties”), Bosnia and Herzegovina (ibid., § 423), Colombia (ibid., § 425), Croatia (ibid., § 427), Estonia (ibid., § 431), Ethiopia (ibid., § 432) (limited to weapons “forbidden by international conventions”), Finland (ibid., § 433), Kazakhstan (ibid., § 436) (limited to weapons “prohibited by an international treaty”), Lithuania (ibid., § 437), Moldova (ibid., § 438) (limited to weapons “prohibited by international treaties”), Nicaragua (ibid., §§ 441–442), Poland (ibid., § 444), Russian Federation (ibid., § 445) (limited to weapons “prohibited by an international treaty”), Slovenia (ibid., § 447), Spain (ibid., §§ 448–449), Sweden (ibid., § 450), Tajikistan (ibid., § 451), Uzbekistan (ibid., § 452), Vietnam (ibid., § 453) and Yugoslavia (ibid., § 454); see also the legislation of Bulgaria (ibid., § 424), Czech Republic (ibid., § 428), Hungary (ibid., § 434), Italy (ibid., § 435), Mozambique (ibid., § 439) and Slovakia (ibid., § 446), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina (ibid., § 421).

[169] UN Secretary-General's Bulletin, Section 6(2) (ibid., § 407).

[170] See, e.g., the legislation of Belarus (cited in Vol. II, Ch. 3, § 35), Belgium (ibid., § 36), Bosnia and Herzegovina (ibid., § 37), Colombia (ibid., § 40), Croatia (ibid., § 42), Estonia (ibid., § 45), Georgia (ibid., § 46), Indonesia ( ibid., § 47), Lithuania (ibid., § 51), Niger (ibid., § 55), Slovenia (ibid., § 57), Spain (ibid., § 58), Sweden (ibid., § 59), Tajikistan (ibid., § 60) and Yugoslavia (ibid., § 62); see also the draft legislation of Argentina (ibid., § 32), El Salvador (ibid., § 44), Jordan (ibid., § 49), Lebanon (ibid., § 50) and Nicaragua (ibid., § 54).

[171] ICTY, Tadic case, Interlocutory Appeal (cited in Vol. II, Ch. 3, § 134) and Kupreškic case, Judgment (ibid., § 137).

[172] See, e.g., the legislation of Armenia (ibid., § 50), Belarus (ibid., § 53), Belgium (ibid., § 54), Colombia (ibid., § 59), Germany (ibid., § 65), Niger (ibid., § 73), Spain (ibid., § 75) and Sweden (ibid., § 76); see also the draft legislation of Argentina (ibid., § 49), Burundi (ibid., § 56), El Salvador (ibid., § 63) and Nicaragua (ibid., § 72).

[173] See UN Commission on Human Rights, Res. 2000/58 (cited in Vol. II, Ch. 3, § 116).

[174] See ICC Statute, Article 8(2)(e)(xii).

[175] See, e.g., the legislation of Azerbaijan (cited in Vol. II, Ch. 11, §§ 136 and 283), Belarus (ibid., §§ 137 and 284), Belgium (ibid., §§ 138 and 285), Bosnia and Herzegovina (ibid., §§ 139 and 286), Croatia (ibid., §§ 142 and 293), Czech Republic (ibid., §§ 144 and 295), Estonia (ibid., §§ 146 and 297), Georgia (ibid., §§ 147 and 298), Germany (ibid., §§ 148 and 299), Hungary (ibid., §§ 149 and 300), Lithuania (ibid., §§ 153 and 304), Niger (ibid., §§ 157 and 311), Poland (ibid., § 313), Slovakia (ibid., §§ 159 and 314), Slovenia (ibid., §§ 160 and 315), Spain (ibid., §§ 161 and 316), Tajikistan (ibid., §§ 162 and 317), Bolivarian Republic of Venezuela (ibid., § 322), Yemen (ibid., § 164) and Yugoslavia (ibid., §§ 165 and 323); see also the draft legislation of Argentina (ibid., §§ 132 and 278), Burundi (ibid., § 287), El Salvador (ibid., §§ 145 and 296), Jordan (ibid., §§ 151 and 302), Lebanon (ibid., §§ 152 and 303) and Nicaragua (ibid., §§ 156 and 310).

[176] See, e.g., ICTY, Blaškic case, Case No. IT-95-14-T, Judgment, Trial Chamber I, 3 March 2000, § 716; Kordic and Cerkez case, Case No. IT-95-14/2-T, Judgment, Trial Chamber III, 26 February 2001, § 256; see also Karadžic and Mladic case, Review of the Indictments (cited in Vol. II, Ch. 32, § 2364).

[177] See, e.g., ICTY, Aleksovski case, Case No. IT-95-14/1-T, Judgment, Trial Chamber I, 25 June 1999, § 229.

[178] See, e.g., the legislation of Azerbaijan (cited in Vol. II, Ch. 32, §§ 2286–2287), Belarus (ibid., § 2289), Democratic Republic of the Congo (ibid., § 2292), Germany (ibid., § 2294), Georgia (ibid., § 2295), Lithuania (ibid., § 2297), Poland (ibid., § 2303) and Tajikistan (ibid., § 2304); see also the legislation of Peru (ibid., § 2302) and Yemen (ibid., § 2307), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Burundi (ibid., § 2290).

[179] See, e.g., the statements of Chile (cited in Vol. II, Ch. 32, § 2310), Tajikistan (ibid., § 2326) and Yugoslavia (ibid., § 2346); the reported practice of Rwanda (ibid., § 2323); UN Commission on Human Rights, Res. 1995/89 (ibid., § 2348); UN Secretary-General, Progress report on UNOMIL (ibid., § 2349), Progress report on UNOMSIL (ibid., § 2350) and Report pursuant to paragraph 5 of Security Council resolution 837 (1993) on the investigation into the 5 June 1993 attack on the UN forces in Somalia conducted on behalf of the UN Security Council (ibid., § 2351).

[180] Additional Protocol II, Article 4.

[181] See supra footnote 89.

[182] See, e.g., the legislation of Albania (cited in Vol. II, Ch. 32, § 1814), Australia (ibid., § 1817), Azerbaijan (ibid., § 1819), Belgium (ibid., § 1823), Bosnia and Herzegovina (ibid., § 1824), Democratic Republic of the Congo (ibid., § 1828), Côte d’Ivoire (ibid., § 1830), Croatia (ibid., § 1831), Ireland (ibid., § 1834), Norway (ibid., § 1847), Paraguay (ibid., § 1848), Slovenia (ibid., § 1850), Uzbekistan (ibid., § 1852) and Yugoslavia (ibid., § 1857); see also the draft legislation of Burundi (ibid., § 1825).

[183] Additional Protocol II, Article 4.

[184] See supra footnote 92.

[185] ICTR Statute, Article 4(b); Statute of the Special Court for Sierra Leone, Article 3(b).

[186] Additional Protocol II, Articles 14 and 18.

[187] UN Commission on Human Rights, Res. 1996/73 (cited in Vol. II, Ch. 17, § 631).

[188] UN Commission of Experts Established pursuant to Security Council Resolution 935 (1994), Interim report (ibid., § 113).

[189] See, e.g., the legislation of Azerbaijan (ibid., § 39), Belarus (ibid., § 40), Bosnia and Herzegovina (ibid., § 41), Croatia (ibid., § 47), Ethiopia (ibid., § 48), Germany (ibid., § 50), Lithuania (ibid., § 52), Slovenia (ibid., § 57) and Yugoslavia (ibid., § 61).

Charter of the Nürnberg International Military Tribunal

[...]

Article 6

The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.

The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(a) Crimes Against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

Article 7

The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

Article 8

The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

Article 9

At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.

After the receipt of the Indictment the Tribunal shall give such notice as it thinks fit that the prosecution intends to ask the Tribunal to make such declaration and any member of the organization will be entitled to apply to the Tribunal for leave to be heard by the Tribunal upon the question of the criminal character of the organization. The Tribunal shall have power to allow or reject the application.

If the application is allowed, the Tribunal may direct in what manner the applicants shall be represented and heard.

[...]

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Full text of the Nuremberg Statute available at: http://www.derechos.org/nizkor/nuremberg/ncharter.html

Allied Control Council Law No. 10

[...]

Article II

1. Each of the following acts is recognized as a crime:

(a) Crimes against Peace. Initiation of invasions of other countries and wars of aggression in violation of international laws and treaties, including but not limited to planning, preparation, initiation or waging a war of aggression, or a war of violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

(b) War Crimes. Atrocities or offences against persons or property, constituting violations of the laws or customs of war, including but not limited to; murder, ill treatment or deportation to slave labour or for any other purpose, of civilian population from occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.

(c) Crimes against Humanity. Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.

(d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal.

2. Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime or (f) with reference to paragraph 1 (a), if he held a high political, civil or military (including General Staff) position in Germany or in one of its Allies, cobelligerents or satellites or held high position in the financial, industrial or economic life of any such country.

3. Any person found guilty of any of the Crimes above mentioned may upon conviction be punished as shall be determined by the tribunal to be just. Such punishment may consist of one or more of the following:

(a) Death.
(b) Imprisonment for life or a term of years, with or without hard labour,
(c) Fine, and imprisonment with or without hard labour, in lieu thereof.
(d) Forfeiture of property.
(e) Restitution of property wrongfully acquired.
(f) Deprivation of some or all civil rights.

Any property declared to be forfeited or the restitution of which is ordered by the Tribunal shall be delivered to the Control Council for Germany, which shall decide on its disposal.

4. (a) The official position of any person, whether as Head of State or as a responsible official in a Government Department, does not free him from responsibility for a crime or entitle him to mitigation of punishment.

(b) The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.

5. In any trial or prosecution for a crime herein referred to, the accused shall not be entitled to the benefits of any statute of limitation in respect of the period from 30 January 1933 to 1 July 1945, nor shall any immunity, pardon or amnesty granted under the Nazi regime be admitted as a bar to trial or punishment.

[...]

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Full text of Control Council Law No. 10 available at: http://www.derechos.org/peace/dia/doc/dia45.html

Charter of the International Military Tribunal for the Far East

[...]

JURISDICTION AND GENERAL PROVISIONS

Article 5. Jurisdiction Over Persons and Offenses. The Tribunal shall have the power to try and punish Far Eastern war criminals who as individuals or as members of organizations are charged with offenses which include Crimes against Peace.

The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(a) Crimes against Peace: Namely, the planning, preparation, initiation or waging of a declared or undeclared war of aggression, or a war in violation of international law, treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

(b) Conventional War Crimes: Namely, violations of the laws or customs of war;

(c) Crimes against Humanity: Namely, muraer, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of Such plan.

[...]

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Full text of the Charter of the International Military Tribunal for the Far East available at: http://www.derechos.org/peace/dia/doc/dia47.html

Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal

Principle I

Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

Principle II

The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Principle III

The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

Principle IV

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Principle V

Any person charged with a crime under international law has the right to a fair trial on the facts and law.

Principle VI

The crimes hereinafter set out are punishable as crimes under international law:

(a) Crimes against peace:

(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

(b) War crimes:

Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war, of persons on the Seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.

Principle VII

Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.

* * * Documentary Note: Text adopted by the International Law Commission at its second session, in 1950, and submitted to the General Assembly as a part of the Commission's report covering the work of that session. The report, which also contains commentaries on the principles, appears in: ILC Report, A/1316 (A/5/12), 1950, part III, paras. 95-127, Yearbook of the International Law Commission, 1950, vol. II.

Statute of the International Criminal Tribunal for the Former Yugoslavia

[...]

Article 3
Violations of the laws or customs of war

The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:

[...]

* * *

Full text of the Statute of the International Criminal Tribunal for the Former Yugoslavia available at: http://www.derechos.org/nizkor/ley/doc/ictystatute.html

Statute of the International Criminal Tribunal for Rwanda

[...]

Article 4: Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II

The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to:

b) Collective punishments;

c) Taking of hostages;

d) Acts of terrorism;

e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;

f) Pillage;

g) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples;

h) Threats to commit any of the foregoing acts.

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Full text of the Statute of the International Criminal Tribunal for Rwanda available at: http://www.derechos.org/nizkor/ictr/ictrstatute.html

Draft Code of Crimes against the Peace and Security of Mankind

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Article 20. War crimes

Any of the following war crimes constitutes a crime against the peace and security of mankind when committed in a systematic manner or on a large scale:

(a) Any of the following acts committed in violation of international humanitarian law:

(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not jusitfied by military necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(vii) Unlawful deportation or transfer of unlawful confinement of protected persons;

(viii) Taking of hostages;

(b) Any of the following acts committed wilfully in violation of international humanitarian law and causing death or serious injury to body or health:

(i) Making the civilian population or individual civilians the object of attack;
(ii) Launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects;
(iii) Launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects;
(iv) Making a person the object of attack in the knowledge that he is hors de combat;
(v) The perfidious use of the distinctive emblem of the red cross, red crescent or red lion and sun or of other recognized protective signs;

(c) Any of the following acts committed wilfully in violation of international humanitarian law:

(i) The transfer by the Occupying Power of parts of its own civilian population into the
territory it occupies;

(ii) Unjustifiable delay in the repatriation of prisoners of war or civilians;

(d) Outrages upon personal dignity in violation of international humanitarian law, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;

(e) Any of the following acts committed in violation of the laws or customs of war:

(i) Employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;

(ii) Wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(iii) Attack, or bombardment, by whatever means, of undefended towns, villages, dwellings or buildings or of demilitarized zones;

(iv) Seizure of, destruction of or wilful damage done to institutions dedicated to religion,
charity and education, the arts and sciences, historic monuments and works of art and
science;

(v) Plunder of public or private property;

(f) Any of the following acts committed in violation of international humanitarian law applicable in armed conflict not of an international character:

(i) Violence to the life, health and physical or mental well-being of persons, in particular
murder as well as cruel treatment such as torture, mutilation or any form of corporal
punishment;
(ii) Collective punishments;
(iii) Taking of hostages;
(iv) Acts of terrorism;
(v) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;
(vi) Pillage;
(vii) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are generally recognized as indispensable;

(g) In the case of armed conflict, using methods or means of warfare not justified by military necessity with the intent to cause widespread, long-term and severe damage to the natural environment and thereby gravely prejudice the health or survival of the population and such damage occurs.

Commentary

(1) For the title of this article, the Commission preferred to retain the expression "war crimes" rather than the expression "violations of humanitarian law applicable in armed conflict". Although the second expression is legally more correct, the Commission preferred the first, which is shorter. When consulted, as of the submission of the first reports, the Commission preferred the expression "war crimes". The expressions "violations of the laws and customs of war" and "violations of the rules of humanitarian law applicable in armed conflict" are, however, also used in the body of the report.

(2) The war crimes referred to in the Charter of the Nürnberg Tribunal under the general heading of "violations of the laws and customs of war" did not involve any general definition.

(3) The authors of the Charter of the Nürnberg Tribunal worked on the basis of a list, stating, however, that the list was not restrictive.|152|

The Nürnberg Tribunal also stated that the violations listed were already covered by The Hague Convention IV of 1907, as well as by the Geneva Convention for the Amelioration of the Wounded and Sick in Armies in the Field of 1929.

(4) Article 20 reproduces, inter alia, the categories of war crimes provided for by The Hague Convention IV of 1907 and the Geneva Convention for the Amelioration of the Wounded and Sick in Armies in the Field of 1929 as well as the Geneva Conventions of 12 August 1949 and the Protocols Additional thereto. However, the Commission considered that the above-mentioned acts must also meet the general criteria indicated in the chapeau of article 20 or, in other words, that they must have been committed in a systematic manner or on a large scale in order to constitute crimes under the Code, that is to say, crimes against the peace and security of mankind.

(5) These general criteria for war crimes under the Code are based on the view that crimes against the peace and security of mankind are the most serious on the scale of international offences and that, in order for an offence to be regarded as a crime against the peace and security of mankind, it must meet certain additional criteria which raise its level of seriousness. These general criteria are provided for in the chapeau of the article: the crimes in question must have been committed in a systematic manner or on a large scale.

(6) This additional requirement is the result of the fact that, until the Judgment of the Nürnberg Tribunal, the word "crime" in the expression "war crimes" was not taken in its technical sense, that is to say, as meaning the most serious on the scale of criminal offences, but, rather, in the general sense of an offence, that is to say, the non-fulfilment of an obligation under criminal law, regardless of the seriousness of such non-fulfilment. The Commission thus deemed it necessary to raise the level of seriousness that a war crime must have in order to qualify as a crime against the peace and security of mankind. Hence its criteria of an act committed in a systematic manner or on a large scale.

(7) A crime is systematic when it is committed accordingly to a preconceived plan or policy. A crime is committed on a large scale when it is directed against a multiplicity of victims, either as a result of a series of attacks or of a single massive attack against a large number of victims.

(8) Not every war crime is thus a crime against the peace and security of mankind. An offence must have the general characteristics described above in order to constitute a crime against the peace and security of mankind.

(9) The list of crimes referred to in article 20 has not been made up ex nihilo. Most of the acts are recognized by international humanitarian law and are listed in different instruments.

(10) The first category of war crimes addressed in subparagraph (a) consists of grave breaches of international humanitarian law as embodied in the Geneva Conventions of 12 August 1949. Subparagraphs (a) (i) to (a) (iii) cover grave breaches of the four Geneva Conventions, namely, the first Geneva Convention (art. 50); the second Geneva Convention (art. 51); the third Geneva Convention (art. 130); and the fourth Geneva Convention (art. 147). Subparagraph (a) (iv) covers grave breaches that are common to the first, second and fourth Geneva Conventions. Subparagraphs (a) (v) and (a) (vi) cover grave breaches that are common to the third and fourth Geneva Conventions. Subparagraphs (a) (vii) and (a) (viii) cover grave breaches of the fourth Geneva Convention. The provisions of subparagraph (a) should be understood as having the same meaning and scope of application as the corresponding provisions contained in the Geneva Conventions. |153| This provision closely resembles the corresponding provision contained in the statute of the International Tribunal for the Former Yugoslavia (art. 3).

(11) The second and third categories of war crimes addressed in subparagraphs (b) and (c) cover the grave breaches listed in Protocol I. As to the second category, subparagraph (b) covers the grave breaches contained in article 85, paragraph 3, of Protocol I. The opening clause of this paragraph reproduces two general criteria contained in article 85, paragraph 3, namely, the acts must be committed wilfully and must cause death or serious injury to body or health. Subparagraphs (b) (i) to (b) (v) cover the grave breaches listed in article 85, paragraph 3, subparagraphs (a) to (c), (e)and (f), respectively. |154| As regards the third category, subparagraph (c) covers the grave breaches listed in article 85, paragraph 4, of Protocol I. The opening clause of this subparagraph reproduces the general criterion contained in article 85, paragraph 4, namely, the acts must be committed wilfully. Subparagraphs (c) (i) and (c) (ii) cover the grave breaches contained in article 85, paragraph 4, subparagraphs (a) and (b) of Protocol I.|155| Subparagraphs (b) and (c) should be understood as having the same meaning and scope of application as the corresponding provisions contained in the Protocol.|156| These subparagraphs are formulated in general terms and do not reproduce the references to the specific articles of Protocol I which provide the underlying standard of conduct for purposes of the grave breaches provisions contained in article 85. Nonetheless the relevant standard of conduct is equally applicable to these subparagraphs.

(12) The fourth category of war crimes addressed in subparagraph (d) consists of "outrages upon personal dignity in violation of international humanitarian law, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault". This type of conduct clearly constitutes a grave breach of the four Geneva Conventions of 12 August 1949 under subparagraphs (a) (ii) and (a) (iii). None the less the Commission considered that it was important to reaffirm explicitly the criminal nature of such conduct as a war crime when committed in armed conflict of an international character in view of the unprecedented reports of this type of criminal conduct having been committed in a systematic manner or on a large scale in the former Yugoslavia. This provision is drawn from article 4, paragraph 2 (e), of Protocol II, which characterizes this conduct as a violation of the fundamental guarantees to which all protected persons are entitled during an armed conflict of a non-international character. The Commission noted that the fundamental guarantees provided for by the law applicable to armed conflict of a non-international character constitutes a minimum standard of humanitarian treatment of protected persons which is applicable to any type of armed conflict, whether international or non-international in character. This is clearly recognized in article 3 common to the Geneva Conventions of 12 August 1949 and article 4, paragraph 2, of Protocol II.

(13) The fifth category of war crimes addressed in subparagraph (e) consists primarily of serious violations of the laws and customs of war on land as embodied in The Hague Convention IV of 1907 and the Regulations annexed thereto. The Commission noted that subparagraph (e) (iv) would cover, inter alia, the cultural property protected by the Convention for the Protection of Cultural Property in the Event of Armed Conflict, as well as the literary and artistic works protected by the Berne Convention for the Protection of Literary and Artistic Works. This provision is based on the Charter of the Nürnberg Tribunal (art. 6, subpara. (C)) and the statute of the International Tribunal for the Former Yugoslavia (art. 3). In contrast to those instruments, this provision provides an exhaustive list of violations of the laws or customs of war to provide a greater degree of certainty in terms of the conduct covered by the Code. In addition, subparagraph (e)(iii) covers the grave breach listed in article 85, paragraph 3 (d) of Protocol I, concerning demilitarized zones. The term "demilitarized zone" has the same meaning in the provision as in article 60 of Protocol I.|157|

(14) The sixth category of war crimes addressed in subparagraph (f) consists of serious violations of international humanitarian law applicable in non-international armed conflict contained in article 3 common to the Geneva Conventions of 12 August 1949 and article 4 of Protocol II. The provisions of this subparagraph should be understood as having the same meaning and scope of application as the corresponding provisions contained in the Geneva Conventions and Protocol II.|158| Subparagraph (f) (i) covers violations of article 3, paragraph 1(a), common to the Geneva Conventions and of article 4, paragraph 2 (a), of Protocol II. Subparagraph (f) (ii) covers violations of article 4, paragraph 2 (b), of Protocol II. Subparagraph(f) (iii) covers violations of article 3, paragraph 1 (b), common to the Geneva Conventions and of article 4, paragraph 2 (c), of Protocol II.|159| Subparagraph (f) (iv) covers violations of article 4, paragraph 2 (d),of Protocol II. Subparagraph (f) (v) covers violations of article 3, paragraph 1 (c), common to the Geneva Conventions and of the more detailed article 4, paragraph 2 (e) of Protocol II. Subparagraph (f) (vi) covers violations of article 4, paragraph 2 (g), of Protocol II. Subparagraph (f) (vii) covers violations of article 3, paragraph 1 (d), common to the Geneva Conventions. The subparagraph is drawn from the statute of the International Tribunal for Rwanda (art. 4), which is the most recent statement of the relevant law. The Commission considered this subparagraph to be of particular importance in view of the frequency of non-international armed conflicts in recent years. The Commission noted that the principle of individual criminal responsibility for violations of the law applicable in internal armed conflict had been reaffirmed by the International Tribunal for the Former Yugoslavia. |160|

(15) The seventh category of war crimes addressed in subparagraph (g) covers war crimes which have their basis in articles 35 and 55 of Protocol I. Violations of these provisions are not characterized as a grave breach entailing individual criminal responsibility under the Protocol. The subparagraph contains three additional elements which are required for violations of the Protocol to constitute a war crime covered by the Code. First, the use of the prohibited methods or means of warfare was not justified by military necessity. The term "military necessity" is used in the provision to convey the same meaning as in the relevant provisions of existing legal instruments, for example, article 23 (g) of the Regulations annexed to The Hague Convention IV of 1907,|161| the grave breaches provisions contained in articles 50,51 and 147 of the first, second and fourth Geneva Conventions, respectively, article 33 of the first Geneva Convention|162| and article 53 of the fourth Geneva Convention.|163| Secondly, the conduct was committed with the specific "intent to cause widespread, long-term and severe damage to the natural environment and thereby gravely prejudice the health or survival of the population". In this regard, the provision requires that the conduct should result in more serious consequences for the population in order to constitute a war crime covered by the Code, namely, gravely prejudicial consequences as compared to prejudicial consequences required for a violation of Protocol I. Thirdly, the subparagraph requires that such damage actually occurred as a result of the prohibited conduct. The Commission considered that this type of conduct could constitute a war crime covered by the Code when committed during an international or a non-international armed conflict. Thus, the subparagraph applies "in the case of armed conflict", whether of an international or a non-international character, in contrast to the more limited scope of application of Protocol I to international armed conflict. The opening clause of the subparagraph does not include the phrase "in violation of international humanitarian law" to avoid giving the impression that this type of conduct necessarily constitutes a war crime under existing international law in contrast to the preceding subparagraphs.|164|

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Full text of Draft Code of Crimes against the Peace and Security of Mankind (with commentaries) available at
http://www.derechos.org/nizkor/aggression/doc/ilc1996.html

Statute of the International Criminal Court

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Article 8
War crimes

1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

2. For the purpose of this Statute, "war crimes" means:

3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.

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Full text of the Rome Statute of the International Criminal Court available at: http://www.derechos.org/intlaw/doc/romestatute.html

Special Panels for Serious Crimes within the District Court of Dili (East Timor Special Panels) (2000)

Special Court for Sierra Leone (2002) and Residual Special Court for Sierra Leone (2010)

Extraordinary African Chambers within the Courts of Senegal for the Prosecution of International Crimes committed in Chad between 7 June 1982 and 1 December 1990 (2012)

War Crimes
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