Seminar 5- War Crimes against Persons

Seminar 5- War Crimes against Persons Victims of War Crimes against Persons • Killing or wounding during an armed conflict is permissible as long as rules of IHL are complied with • Distinction between lawful and criminal conduct by reference to victims − Only acts harming protected persons would qualify as a war crime • War crimes under Geneva law can only be committed against persons who are not or no longer participating in hostilities Protected Persons • Generally speaking: − Civilians − Prisoners of war − Combatants no longer able to fight because they are sick, wounded or shipwrecked • Persons not entitled to protection under GC I-III fall within the ambit of GC IV (civilians) Protected Persons- Who and When Protected Persons under GC IV • Protected persons: those “in the hands of a party to the conflict or occupying Power of which they are not nationals” (art. 4 GC IV) − In territory that is under control of an opposing party to the conflict − A foreign state or an armed group in control of a particular region • A nationality test? • Tadić: does not correspond to the reality of the armed conflict • Does that work in conflicts among ethnic groups? If we look in the Tadic Decision: • Tadić Decision: looking solely at the nationality of the victim would deny Bosnian Serbs the status of protected persons under GC IV vis-à-vis the Bosnian government, because they are Bosnian nationals (para. 76) (see also Tadić AJ para. 166) • Ethnicity rather than nationality as decisive factor • ICC adopted the same approach (Katanga case) • Persons may be accorded protected status even if their nationality is the same as their captors Protected Persons in NIAC • Common Article 3(1): 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 (see also art. 4(1) AP II) • ICC adopted the same definition (EoC art. 8(2)(c)(i)-(iv)) − Broad definition, necessary in modern armed conflicts − Crucial element: the victim did not participate directly in hostilities at the time the crime was committed (compare to IAC: art. 51(3) AP I) ‘No Active Part’ • Civilians directly participating in the hostilities are not protected from attacks − Need to establish that the victim was a civilian, and − (s)he was not participating directly in the hostilities • “A civilian who takes part in armed combat loses his or her immunity and becomes a legitimate target.” (Milošević TJ) − The specific situation of the victim at the moment the crime was committed • Active part in hostilities where a person engages in acts of war which “by their nature or purpose, are likely to cause actual harm to the personnel or materiel of the enemy forces” (Milošević TJ) Factors: − The activity of the victim − Whether or not the victim was carrying weapons − Clothing, age, and gender of the victim • Combatants can be distinguished by wearing a uniform and by carrying weapons openly • Membership in the armed forces is a strong indicative of direct participation − But it’s not determinative • ICC on direct participation in hostilities: − Not only participation in combat but also active participation in combat-related activities (Lubanga Dyilo, PTC Decision on Confirmation of Charges 29 Jan 2007, para 261) Killing as a War Crime • Wilful killing of a protected person during IAC is a war crime (art. 8(2)(a)(i)) − A ‘grave breach’ under Geneva law (art. 50 GC I; art. 51 GC II; art 130 GC III; art. 147 GC IV) • Murder of protected person during NIAC as a war crime (art. 8(2)(c)(i)) − Common art. 3(1)(a) • Difference? − The different terminology used in Common Article 3 and the ‘grave breaches’ provisions has no significance (see e.g. Mucić TJ paras. 420 et seq) ( para 421. “The Trial Chamber notes that the term “wilful killing” has been incorporated directly from the four Geneva Conventions, in particular articles 50, 51, 130 and 147 thereof, which set out those acts that constitute “grave breaches” of the Conventions (homicide from French) . On the other hand, “murder”, prohibited by common article 3 of the Conventions) ( meurtre from French) … para 422. “there can be no line drawn between “wilful killing” and “murder” which affects their conten” − Para 424. “” The Trial Chamber notes that omissions as well as concrete actions can satisfy the actus reus element, and that the conduct of the accused must be a substantial cause of the death of the victim” • The requirements of the crime are the same as for CAH Killing as a War Crime – Material Element • Material elements in IAC: − Killing a protected person − Causing the death of a protected person − Difference? !! The notion of killing has been used interchangeably with causing death. Thus, this grave breach covers not only such acts as shooting a protected person to death, but also such conduct as reducing the food rations of protected persons, resulting in their starvation and ultimately their death. • Same wording for NIAC − Common art. 3(1)(a) • Way and means of killing are irrelevant, as long as the death can be attributed to the perpetrator’s act or omission Killing as a War Crime – Typical Criminal Acts • Typical criminal acts in IAC: − Killing of prisoners of war without a prior fair trial − Reduction of rations for prisoners resulting in starvation − Mistreatment of prisoners of war leading to death • Similar in NIAC − Note that the protected status in NIAC extends to all persons not actively involved in the hostilities − Also, civilians who are not in the hands of the opposing party to the conflict • Killing of combatants by other combatants during hostilities is not a war crime Killing as a War Crime – Mental Element • Different from the general requirements under art. 30 (intent and knowledge) • It is sufficient that − The perpetrator willfully causes serious bodily harm, which − The perpetrator should reasonably have known might lead to death Killing as a War Crime – Combatants Who Have Laid Down Their Arms • Killing and wounding of combatants laid down their arms is criminal (art. 8(2)(b)(vi)) − Art. 23(c) the Hague Regulations − Art. 41 AP I, hors de combat may not be attacked − Art. 85(3)(e) AP I, grave breach ( In addition to the grave breaches defined in Article 11, the following acts shall be regarded as grave breaches of this Protocol, when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health: (a) making the civilian population or individual civilians the object of attack; (b) 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, as defined in Article 57, paragraph 2 (a) (iii) (c) 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, as defined in Article 57, paragraph 2 (a) (iii) (d) making non-defended localities and demilitarized zones the object of attack; (e) making a person the object of attack in the knowledge that he is ' hors de combat '; (f) the perfidious use, in violation of Article 37, of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective signs recognized by the Conventions or this Protocol. • The only legitimate goal of warfare is to weaken the opposing party’s military strength Attacks against Civilian Population • Art. 8(2)(b)(i) (IAC) and art. 8(2)(e)(i) (NIAC) entails criminal responsibility for: − Attacks against civilian population as such, or − Against individual civilians not taking direct part in the hostilities • See art. 51(2) AP I (the civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. ) and art. 13(2) of AP II – the same provision • A grave breach if the attack causes death or serious injury to the victim (art. 85(3)(a) AP I) • Launching an attack is sufficient for criminal liability • What is an ‘attack’ − Any offensive or defensive use of violence against an adversary (Galić TJ, para. 52” “Attack” is defined in Article 49 of Additional Protocol I as “acts of violence against the adversary, whether in offence or in defence.” The Commentary makes the point that “attack” is a technical term relating to a specific military operation limited in time and place, and covers attacks carried out both in offence and in defence. The jurisprudence of the Tribunal has defined “attack” as a course of conduct involving the commission of acts of violence. In order to be punishable under Article 3 of the Statute, these acts have to be carried out during the course of an armed conflict”; see also art. 49(1) AP I= "Attacks" means acts of violence against the adversary, whether in offence or in defence.) • Who is a ‘civilian’ − Art. 50 AP I – any person who is not combatant − In case of doubt: civilian • But protected status ceases if the civilian takes direct part in the hostilities