According to the Office of the United Nations High Commissioner for Human Rights, war crimes are classified as significant violations of international law committed against civilians or combatants in an armed conflict that should generate individual criminal responsibility for the perpetrator. The most recent codification is Article 8 of the 1998 Rome Statute, the establisher of the International Criminal Court. This article defines more than 50 examples of war crimes, such as murder, torture, taking hostages among civilians, and depriving prisoners of war of a fair trial.
A war crime occurs when one of the parties voluntarily attacks non-military people and materials. For example, in the war in Ukraine, images of bodies with hands tied back or in mass graves and the destruction of hospitals and schools were reasons to investigate whether war crimes had occurred.
In contrast to crimes of aggression, war crimes concern the violation of norms regulating ongoing armed conflicts. According to Malcolm Shaw, a leading international law expert, war crimes are still defined as “severe violations of the rules of customary and conventional law relating to international humanitarian law, also known as the rules governing armed conflict.” Given this, it is possible to understand that the definition and penalties for crimes during wartime were a way to minimize damage and increase accountability for those who commit heinous crimes in an already catastrophic scenario.
International humanitarian law establishes three principles concerning the civilian population: distinction, proportionality, and precaution to decide whether a soldier or civilian has committed a war crime. Proportionality, for example, prohibits reacting to an attack with excessive violence. Distinction calls for trying to distinguish between civilian and belligerent populations and objects, and precaution requires parties to a conflict to avoid or minimize harm to civilians.
The international agreements that inserted War Crimes into the Geneva Convention are managed by the International Criminal Court, which has jurisdiction to try war crimes. Recently, The Hague Tribunal has started trying war crimes, including cases involving mass rapes and sexual enslavement, considered as crimes against humanity. The Geneva Conventions were also significant in giving more attention to these crimes to eradicate the crimes that took place during wartime.
Since defining a war crime involves investigation and prosecution, it often takes years to finalize the process and bring it to trial. Opening a case to investigate whether a war crime has been committed can be done in several ways, including a complaint, a Criminal Court investigation, or a request from the United Nations Security Council. The Hague Tribunal only issues judgments after an extensive body of evidence indicates that the action was against humanitarian law. A conviction can even carry the death penalty.
It is essential to point out that it was only after the Second World War that the concept of war crimes came into existence, aiming to prevent greater atrocities than those occurring during wartime. Unfortunately, even so, in the war in Ukraine that is happening now, based on its investigations into events in the regions of Kyiv, Chernihiv, Kharkiv, and Sumy, the Independent International Commission of Inquiry on Ukraine has concluded that war crimes have been committed in Ukraine.
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