After witnessing the commission of horrendous violations of international humanitarian law during World War II, the Allied powers agreed to set up the International Military Tribunal at Nuremberg. In many ways, this can be seen as the birth of international criminal law as a means of enforcing IHL. From this moment onwards, certain acts committed in armed conflict were able to be qualified as war crimes, and those considered to be individually responsible for them could be prosecuted by an international tribunal. Nevertheless, the idea of a permanent international criminal court had to be put on hold during the Cold War. It was only after the fall of the Berlin Wall, and another impression that serious violations of IHL had been perpetrated during the armed conflict in the former Yugoslavia in the 1990s that the international community decided to set up the International Criminal Tribunal for the former Yugoslavia, or ICTY. And one year later, the International Criminal Tribunal for Rwanda, the ICTR. Finally, in 1998, the Rome Statute for a permanent International Criminal Court was signed. It entered into force in 2002. Since then, the court's role has been to prosecute crimes that are to be considered the most serious crimes of concern to the international community as a whole, including war crimes. The conviction of individuals for their involvement in the commission of international crimes is one way to enforce IHL, and to strengthen compliance with it. In this lecture, we will focus on the prosecution of war crimes, although crimes against humanity and genocide can be similarly, although not necessarily, committed in conflict situations. The first important question we have to ask ourselves is: What are, actually, war crimes? War crimes are defined as all serious violations of international humanitarian law that give rise to individual criminal responsibility, either by an international treaty or customary international law. The rules providing for war crimes, which are part of international criminal law, criminalize the violation of a select number of IHL rules, including grave breaches of the Geneva Convention. It is important to stress that only serious violations of IHL may constitute war crimes. Put differently, not all violations of IHL constitute a criminal offense. For example, one rule of IHL found in the third Geneva Convention provides that Prisoners of War should have a canteen, where they may purchase food, soap, and tobacco at local market prices. Thus, while the unavailability of tobacco would amount to a breach of IHL, it would certainly not constitute a war crime, as it would not be seen as a serious violation of IHL. This would be decided differently if the prisoners of war would have been killed or tortured. The first list of possible war crimes was included in the charter of the International Military Tribunal at Nuremberg, and later in the provisions on grave breaches in the 1949 Geneva Conventions. Subsequently, in 1977, Article 85 of API clarified that grave breaches of the Geneva Conventions are to be seen as war crimes. To get an idea as to which offenses constitute war crimes, we may want to look at the Rome Statute of the International Criminal Court, which represents the latest qualification of war crimes. Article 8 of the Rome Statute features four lists, or categories, of offenses that constitute war crimes. Namely, one, grave breaches of the Geneva Conventions. Two, other serious violations of the laws and customs applicable in international armed conflict. Three, serious violations of Common Article 3, and four, other serious violations of the laws and customs applicable in non-international armed conflict. The other serious violations are drawn from various sources that have been accepted as customary law, but mainly amount to certain rules of Hague law. Some examples of war crimes in the Rome statute include: Intentionally directing attacks against the civilian population; Killing or wounding a combatant who has surrendered; Employing poison or poisoned weapons; Committing rape; and conscripting children under the age of 15 into the armed forces. Finally, for the purposes of amounting to a war crime, it is important for each offense to be linked to an armed conflict. In other words, there must be a certain nexus to the conflict. If this nexus is absent, then the behavior merely constitutes an ordinary criminal offense under national law, and not a war crime. The next important question is: Who can be convicted for war crimes? International criminal law recognizes various modes of liability. In essence, persons who commit, order, solicit, induce, aid and abet, or otherwise assist in the commission of a war crime may be convicted. One special characteristic of the regime governing the modes of liability in the field of international criminal law is that military commanders and also civilian superiors can be convicted for war crimes committed by their soldiers under certain circumstances, even if they did not directly commit the crime. We call this command or superior responsibility. Now let's see where and under which conditions accused war criminals can be prosecuted. In principle, states have the duty to investigate and prosecute persons who have committed serious violations of IHL on their territory. This follows from the system of grave breaches, which was introduced into the Geneva Conventions in 1949. The idea behind this regime is that IHL should be enforced primarily through a national system. This means that either the national state of the perpetrator investigates and prosecutes the possible war crime, or the state extradites the suspect to a third state which is willing and able to do this. National prosecutions were, for a long time, considered a better option, in political and practical terms. However, after World War II, only a very restricted number of national prosecutions actually took place. One has to say that, overall, states have proven to be rather reluctant, unwilling, or unable to prosecute their own nationals. As a result, international criminal tribunals and courts have been established in response to this general impunity on a domestic level. Important early examples of this include the International Military Tribunal at Nuremberg, and its sister tribunal in Tokyo, which was set up after World War II. And the more recent ad hoc tribunals for the former Yugoslavia and Rwanda, as well as the International Criminal Court. By now, several other international and internationalized criminal tribunals have been set up, but we will focus on the International Criminal Court in this lecture. Today the most important international criminal body for the enforcement of IHL is the International Criminal Court, or ICC. The ICC is the only permanent body with a comprehensive mandate and jurisdiction to try individuals for serious violations of IHL. Still, the ICC can only operate in two main situations. First, when states are party to the Rome statute, and the crimes have either happened on their territory or have been committed by their nationals. In addition, the state also must be unwilling and unable to prosecute their nationals. The second option is that the UN Security Council decides to refer a particular situation to the court under Chapter VII of the UN Charter. This explains, for instance, why the ICC is currently not in a position to investigate alleged international crimes committed in the conflict in Syria. To wrap up this lecture, a crucial way to enforce international humanitarian law is by prosecuting, convicting, and punishing war criminals. While it sometimes may be challenging to prosecute individuals for their contributions to serious violations of IHL, criminal prosecutions on both the national and international levels have proven to be a powerful tool in strengthening respect for international humanitarian law. And the jurisprudence of these international tribunals has had a major impact on the further development of IHL.
