What Is a “War Crime”?

Abstract

Introduction The foundation having been laid and the framework erected, we may examine specific law of armed conflict/international humanitarian law (LOAC/IHL) issues. Initially, what is a war crime? This is a basic question for, if there is law on the battlefield, then violations of that law are possible. What constitutes a war crime, and who may be charged with a violation? Defining War Crimes “[F]irst, there must be an armed conflict…” An armed conflict, international or non-international, or involving an armed opposition group, is a prerequisite to war crimes and grave breaches. Whereas armed conflict is easily discernable in a common Article 2 context, it is not always so in a non-international situation. One test (there are many) for determining the existence of an armed conflict is set out in the Tadic Jurisdiction decision: [A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups within a State…[I]nternational humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there. In armed conflict there are crimes – simple violations of a domestic code, such as the state's criminal or military codes; there are war crimes – violations of LOAC; and there are grave breaches – the more serious violations of LOAC/IHL, specified in the Geneva Conventions and Additional Protocol I. Genocide, crimes against humanity, and crimes against peace are offenses under international criminal law, not included in LOAC/IHL but there is more to “war crime” and “grave breach” than a definitional phrase.