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The international criminal court: explaining war crimes investigations.

Amid the Russian invasion of Ukraine, international criminal prosecution expert Alex Whiting outlines the path from investigation to trial, and ultimately to justice

The chief prosecutor of the International Criminal Court, Karim Ahmad Khan, recently launched an investigation of war crimes and crimes against humanity allegedly committed amid Russia’s invasion of Ukraine. To understand how the investigation and potential prosecutions might proceed, Harvard Law Today spoke to Alex Whiting , a visiting professor of practice at Harvard Law and the current deputy specialist prosecutor at the Kosovo Specialist Prosecutor’s Office in The Hague. He previously served as a prosecutor at the International Criminal Court and also the International Criminal Tribunal for the Former Yugoslavia. Whiting says that despite the challenges of gathering evidence in a conflict zone and arresting those involved, international criminal investigations focus attention on the ongoing crimes and their victims, and ultimately send a message to perpetrators that “the arm of justice is long.” 

Harvard Law Today: You are speaking to us today from The Hague, monitoring the war in Ukraine from a much closer distance than we are in Cambridge, Massachusetts. How are you experiencing it?

Alex Whiting: Since this court was set up by the European Union, it is staffed almost entirely by people from European countries. And I can tell you that the war has hit people here very hard, both because of the work we do and our commitment to international law, and because we know what can happen and what is going to happen during this conflict. There is shock about the violation of international law. But also, for Europeans, this is right here, and it feels very close. Many people here have connections to people in Ukraine, have spent time there, have worked with people there, know people there. So, it feels very close, very personal, and very upsetting for people here.

HLT: Ukrainian President Volodymyr Zelinsky has accused Russia of war crimes. What is the process of investigating those allegations?

Whiting: Those allegations will be investigated by the International Criminal Court. The court has 123 member states, but neither Russia nor Ukraine is a party. However, back in 2015 when Russia invaded and annexed Crimea, Ukraine referred the conflict to the court for investigation. And there’s a provision in the Rome Statute — article 12.3 — which allows states that are not members of the court to refer a conflict and allegations of crimes to the court. But an investigation has to be triggered, and one way for that to happen is if one of the 123 member states asks the court to investigate. And it was just announced Thursday night that 39 states referred the Ukraine situation to the International Criminal Court for investigation. So, the prosecutor of that court announced that he is immediately opening up an investigation and will start collecting evidence. That investigation is also open into past crimes that could have occurred in the Crimea and eastern Ukraine.

HLT: Why is it important for the court to begin investigating now, rather than waiting for the conflict to end?

Whiting: Investigations and prosecutions are important even before cases are brought before the court because they bring attention to the crimes that are being committed, and to the victims of these of these crimes. So, even aside from what happens in court down the road, the act of investigating and framing what is happening and naming it is extremely important.

HLT: What types of crimes can the International Criminal Court investigate?

Whiting: T he International Criminal Court has jurisdiction over four types of crime: war crimes, crimes against humanity, genocide, and the crime of aggression. And there is no doubt that this is an act of aggression by Russia against Ukraine. However, the crime of aggression has a particular requirement, which is different from all the other crimes. It can only be prosecuted by the court if one member state commits an act of aggression against another. Since neither Russia nor Ukraine is a member, the crime of aggression here does not apply. So, the International Criminal Court is focusing on war crimes, and it will also consider crimes against humanity if they arise.

HLT: There is also an International Court of Justice. What role does it play?

Whiting: T he  International Criminal Court investigates and prosecutes international crimes committed by individuals. The International Court of Justice resolves disputes between states. Ukraine has brought an emergency case before that court, which will be heard next week. The focus of Ukraine’s complaint is that Russia has used as one of its justifications — I’ll say, phony justification — for invading Ukraine the allegation that there is a threat of genocide against Russian nationals living in Ukraine. Ukraine says this is nonsense. The ICJ should rule that there is no such threat and that assertion cannot be used as a justification for the invasion.

HLT: Who can the ICC prosecute? Only state leaders? Or everybody who was involved? And does it look at people from both sides? 

Whiting: With respect to whether it’s both sides, the answer to that is yes. Now, of course, at the moment the allegations of crimes are being made against the Russians invading Ukraine. But the ICC is neutral and will investigate all allegations of crimes.

With respect to who gets investigated, the ICC tries to focus always on those most responsible, so the big fish, whether those are political leaders or military leaders. However, all of the international courts, including the ad hoc tribunals and the International Criminal Court, have also been willing at times to prosecute mid-level actors who have been particularly instrumental in the commission of the crimes. So, in this case, when we’re thinking about potential targets in the Russian military or Russian political figures, it’s very possible that mid-level commanders who are operating in Ukraine could become the focus of investigations by the ICC.

HLT: Unlike previous conflicts, this war is happening at a time when everyone carries a recording device in their pocket. What role do you think video collected on cell phones will play as the ICC collects evidence?

Whiting: That’s a fascinating development in this field that I think ultimately will be a real game changer in the way these cases are investigated and prosecuted. The number one challenge faced by international courts, and by the ICC today in Ukraine, is getting access to the places where the alleged crimes are being committed, where the bombs are falling, and where people are being killed. It’s very difficult for investigators from The Hague to travel to those places to gather evidence while the conflict is still ongoing. So, more and more there is discussion about how first responders and people on the scene can take steps to preserve evidence. And one of the ways is using a cell phone to take videos, which allows for the possibility of gathering significant evidence in real time and preserving it.

However, it is enormously complicated for three reasons. The first and most important is there can be serious security and safety concerns for the people who are gathering the evidence, or people who might be captured in the videos. So, even while you’re collecting the evidence, you have to be thinking ahead to the day when you’re going to make that public, and there could be security concerns for the people connected with that collection. Secondly, there are very complicated issues about authenticating that evidence; was that video really taken on that day at that location? And the third thing is the organizational challenge of managing the massive amount of information pouring out of the country. So, there is real promise here. And we’ve already seen videos coming out of Ukraine which suggest potential war crimes having been committed. But it’s an extraordinarily challenging investigation to manage.

HLT: How long do these investigations take? Is there a statute of limitations?

Whiting: There is no statute of limitations, which is the good news. But the investigation can sometimes be lengthy, just because of the challenges of collecting the evidence while the conflict is ongoing in real time, especially against senior political or military leaders. Another cause of significant delay is trying to make the arrest. So, for example, in the Ukraine case, if cases were brought against Russian political or military leaders, it might take a very long time before any of those people, who would presumably be in Russia, could ever be arrested. So, these cases can sometimes start moving within a year or two, but sometimes it takes many, many years before they come to court. Even when they do take a long time — and let’s remember that it was only a few years ago that we were still trying cases from World War II in Germany — justice still is served and a message is sent to perpetrators today that the arm of justice is long.

HLT: What are the possible punishments?

Whiting: Although there is a notional maximum penalty of 30 years at the International Criminal Court, there’s a provision that allows for an upward departure in particularly egregious cases. Trying to conceive of a sentencing scheme for these sorts of cases is complicated. And you can see quite a range of sentences, from 10 to 15 years up to life imprisonment.

HLT: How would you evaluate the success of the international justice system, and what can or should be done to strengthen it?

Whiting:  We have to keep in mind that this is a very new project. The first international tribunal, of course, was at Nuremberg. But after Nuremberg and the Tokyo courts, there was nothing for 50 years until the Yugoslavia court in 1993. So, it’s been less than 30 years in the modern era that we’ve been at this project. If in 1993, you said to people that we were on the cusp of an era when there would be multiple ad hoc tribunals and a permanent international criminal court and that there’d be accused persons, trials, convictions, acquittals, and sentencings, and that some of the top leaders in some of these conflicts would be brought to justice, nobody would have believed you. And so, in some ways, this project has wildly exceeded any expectations.

However, if you do this work, you feel every day the frustrations and the challenges and the stresses as well as the limitations of the powers that these courts have been granted. It’s never enough. It’s incomplete. It’s just a beginning. There are ups and downs. And we have successes and failures. But I always hope that we’re moving towards a better future that we’re moving towards this becoming a norm. What do we need for success? The main thing that we need for success is for all states in the world to support this kind of international justice, by joining the ICC and actively cooperating in and supporting these investigations and prosecutions.

HLT: Is there anything you’d like to add?

Whiting: The one thing I would come back to is the point about aggression, because aggression was actually the main crime at Nuremberg. None of the modern tribunals that came after have had jurisdiction over the crime of aggression. And the International Criminal Court only got jurisdiction over the crime of aggression in 2018. Only 43 of the 123 member states have ratified that additional crime. But today, with the invasion of Ukraine by Russia, we see very dramatically why the crime of aggression is so important. And we have renewed the discussion of how we might do more to be able to prosecute it. So, these events with Russia and Ukraine link back to World War II and Nuremberg with respect to the crime of aggression.

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Articles on War crimes

Displaying 1 - 20 of 189 articles.

Other nations are applying sanctions and going to court over Gaza – should NZ join them?

Alexander Gillespie , University of Waikato

Gaza update: Netanyahu knocks back Hamas peace plan while the prospect of mass famine looms ever larger

Jonathan Este , The Conversation

Gaza war: how South Africa’s genocide case against Israel is shaping up

Carlo Aldrovandi , Trinity College Dublin

Australia is still reckoning with a shameful legacy: the resettlement of suspected war criminals after WWII

Jayne Persian , University of Southern Queensland

Israel is accused of using white phosphorous. Would this be against international law?

Sascha-Dominik (Dov) Bachmann , University of Canberra

Israel’s mass displacement of Gazans fits strategy of using migration as a tool of war

Nicholas R. Micinski , University of Maine ; Adam G. Lichtenheld , Stanford University , and Kelsey Norman , Rice University

An inside look at the dangerous, painstaking work of collecting evidence of suspected war crimes in Ukraine

Olivera Simic , Griffith University and Anastasiia Chupis , Södertörn University

Gaza Update: ceasefire holds for now, but array of armed Hamas allies could threaten this fragile truce

Israel-Gaza : what the term genocide means under international law – podcast

Mend Mariwany , The Conversation

There has been much talk of war crimes in the Israel-Gaza conflict. But will anyone actually be prosecuted?

Donald Rothwell , Australian National University

David McBride is facing jailtime for helping reveal alleged war crimes. Will it end whistleblowing in Australia?

Rebecca Ananian-Welsh , The University of Queensland

Israel-Hamas war: there is an important difference between a humanitarian pause and a ceasefire

Malak Benslama-Dabdoub , Royal Holloway University of London

Where the ICC stands if war crimes are committed on either side of the Israel-Hamas  war

Catherine Gegout , University of Nottingham

Can Israel and Hamas be held to account for alleged crimes against civilians?

Amy Maguire , University of Newcastle

Hamas-Israeli conflict: what’s at stake for Egypt

Ofir Winter , Tel Aviv University

How the ‘laws of war’ apply to the conflict between Israel and Hamas

Robert Goldman , American University

Where does international law fit into the Israeli-Palestinian conflict?

Julia Grignon , Université Laval

Calling the war in Ukraine a ‘tragedy’ shelters its perpetrators from blame and responsibility

Mariana Budjeryn , Harvard Kennedy School

Canada’s war crimes investigation may not deter Russia, but it matters to Ukrainians

Jamie Levin , St. Francis Xavier University and Kiran Banerjee , Dalhousie University

‘No woman in the usual sense’: Ilse Koch, the ‘Bitch of Buchenwald’, was a Holocaust war criminal – but was she also an easy target?

Olivera Simic , Griffith University

Related Topics

• Crimes against humanity
• International Criminal Court
• International Criminal Court (ICC)
• International law
• Ukraine invasion 2022
• United Nations
• Vladimir Putin

Top contributors

Professor of Law, University of Waikato

Professor of Human Rights and International Humanitarian Law, Queen's University Belfast

Associate Professor in Human Rights and International Law, University of Newcastle

Professor of Law, American University

Anthropologue, Maîtresse de conférences à l'Université de Strasbourg, Université de Strasbourg

Lecturer in History, Murdoch University

Senior Lecturer in History and Politics, Murdoch University

Lecturer in Law, University of East London

Executive Director, University of Dayton Human Rights Center, University of Dayton

Lecturer in International Relations and International Security, University of Bath

Associate Professor in International Relations, University of Nottingham

Challis Chair of International Law, Sydney Law School, University of Sydney

Professor in International Law, Bournemouth University

Professor of International Law, University of Portsmouth

Associate Professor International Law, Roskilde University

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Yale Joins Conflict Observatory Documenting Ukraine War Crimes

Ukraine war damage.

The Yale School of Public Health’s Humanitarian Research Lab (HRL) will document alleged violations of international law and crimes against humanity, including war crimes, by Russia-aligned forces in Ukraine as part of a new Conflict Observatory initiative announced today by the U.S. Department of State.

The Yale HRL recently identified 22 damaged hospitals and health care facilities in Ukraine in its first report to the Organization for Security and Co-Operation in Europe’s Moscow Mechanism.

The Yale HRL team will work in close collaboration with the Bureau of Conflict and Stabilization Operations (CSO), geographic mapping software company ESRI, the Smithsonian Cultural Rescue Initiative, PlanetScape Ai, and other partners in supporting the Conflict Observatory.

“President Peter Salovey has denounced the ‘callous disregard for human life and reckless destruction of Ukraine’s cities,’” said Pericles Lewis, vice president for global strategy and vice provost for academic initiatives at Yale University. “The work of the Humanitarian Research Lab continues a long tradition of Yale scholars who lend their expertise to addressing the health and welfare of communities around the globe. My colleagues and I are proud of the work of the Humanitarian Research Lab to document potential war crimes.”

A summary of the HRL team’s first report, Evidence of Widespread and Systematic Bombardment of Ukrainian Healthcare Facilities is available on the Conflict Observatory website . The report, which contributed to the Organization for Security and Co-Operation in Europe’s (OSCE) Moscow Mechanism mission of experts, found that 22 hospitals and health care facilities in five localities in Ukraine sustained damage between 24 February and 29 March 2022. The Moscow Mechanism was initiated by OSCE Member States to collect evidence of alleged violations of international humanitarian and human rights law. The HRL report is based on commercial satellite imagery analysis and open-source investigative methods. The Yale HRL concluded that Russia-aligned forces have engaged in widespread and systematic bombardment of Ukrainian health care facilities. The HRL’s evidence corroborates reports by OSCE ground monitors in Ukraine who also documented attacks on health care facilities by Russia-aligned forces.

Destruction of health facilities is devastating not only for patients and providers; but for entire populations. Dean Sten Vermund, Yale School of Public Health

“Destruction of health facilities is devastating not only for patients and providers but for entire populations,” said Professor Sten Vermund, M.D., Ph.D., dean of the Yale School of Public Health. “Health facility destruction is a form of terrorism that leaves lasting scars.”

Kaveh Khoshnood, Ph.D., M.P.H., an associate professor of epidemiology at the YSPH and faculty director of HRL, will serve as principal investigator. Nathaniel Raymond, lecturer in epidemiology at YSPH and executive director of the Yale HRL, will supervise the HRL team working on the project.

“The Humanitarian Research Lab brings unique skills and expertise to the Conflict Observatory,” said Khoshnood. “This project aligns directly with the lab’s mission to support international responses during complex emergencies in real-time while developing rigorous and empirical methodologies for conducting this work.”

Featured in this article

• Sten H. Vermund, MD, PhD Anna M.R. Lauder Professor of Public Health
• Kaveh Khoshnood, PhD, MPH Associate Professor of Epidemiology (Microbial Diseases); Track Director, Critical Topics, Executive MPH; Program Co-Director, Global Health Ethics Program, Yale Institute for Global Health
• Nathaniel Raymond Executive Director, Humanitarian Research Lab; Executive Director, Humanitarian Research Lab - YSPH, EMD

Related Links

• Evidence of Widespread and Systematic Bombardment of Ukrainian Healthcare Facilities

DOJ takes a stand against war crimes in Ukraine. In Gaza, it’s been nearly silent

U.S. Attorney General Merrick Garland speaks at a press conference on Dec. 6, 2023, about DOJ's indictment of four Russian military personnel for war crimes committed against a U.S. national living in Ukraine, the first of such charges ever to be brought under the U.S. war crimes statute.

Samuel Corum / Getty Images

After the Kremlin's full-scale invasion of Ukraine in February 2022, Attorney General Merrick Garland and the U.S. Justice Department moved quickly — and publicly — to hold Russia to account for possible war crimes.

In speeches and news conferences, including on a surprise visit to Ukraine in June 2022 , Garland condemned Russia's military onslaught and the "war crimes that the entire world has seen." The attorney general has repeatedly pledged that the Justice Department would do all it could to hold the perpetrators accountable.

It wasn't just talk. Garland also quickly established a special team to focus on possible Russian atrocities, an effort that led to charges late last year against four Russian soldiers for alleged war crimes in Ukraine. The U.S. is also assisting Ukrainian authorities with their own investigations.

The aggressive public response appeared to signal the department's newfound interest in and commitment to prosecuting war crimes.

"I think Ukraine has been a game changer because the United States sees its interests as allied with the Ukrainians," said Leila Sadat, a professor of international criminal law at Washington University in St. Louis and a former special adviser to the International Criminal Court prosecutor. "What's changed with Ukraine is we now have some political will and we have some staffing in the Justice Department to actually be able to do these cases."

It's unclear, however, whether the department's political will extends to the other major war raging right now — the one between Israel and Hamas.

Nearly six months into that conflict, Garland has said just 29 words in public about possible war crimes. Those remarks came at a news conference in December announcing the case against the Russians when he was asked by a Fox News reporter, “Where are you on war crimes relating to Hamas?”

Garland replied: "Hamas murdered more than 30 Americans and kidnapped more during their terrorist attack on Oct. 7. We are investigating those heinous crimes, and we will hold those people accountable."

Garland made no mention of examining Israel's actions in the conflict.

NPR sent the Justice Department questions for this story about its approach to possible war crimes in the Israel-Hamas conflict. The department declined to comment.

Experts say that the U.S. has clear ground to pursue a case against Hamas

Under the 1996 U.S. War Crimes Act, the Justice Department has jurisdiction to bring war crimes charges when either the victim or the perpetrator is a U.S. national or permanent resident.

In response to the Ukraine war, Congress passed a new law last year that expanded the department's powers, giving prosecutors the ability to bring charges if a suspected war criminal is on U.S. soil, regardless of the individual's nationality.

Garland welcomed the law's passage.

"In the United States of America, there must be no hiding place for war criminals and no safe haven for those who commit such atrocities," he said in a statement at the time. "This bill will help the Justice Department fulfill that important mandate."

With those authorities in hand, the department has clear grounds to investigate Hamas' deadly assault on Israel, legal experts say.

"There's definitely a basis for an investigation of war crimes by Hamas militants," said David Scheffer, a former U.S. ambassador for war crimes issues. "The destruction of civilian property and the taking of hostages and bringing them back to Gaza — all of that falls within a war crimes context."

There are also allegations of sexual violence by Palestinian militants on Oct. 7, as well as the indiscriminate firing of rockets into Israel during the conflict, both of which could also be war crimes.

Hamas' surprise Oct. 7 attack on southern Israel killed some 1,200 people, the majority of them civilians. The militants also took more than 200 hostages, some 130 of whom are still in captivity.

The U.S. has designated Hamas a terrorist organization, and American prosecutors could pursue terrorism charges against the group's fighters instead of war crimes, if that would make a stronger case in U.S. court.

Either way, experts say that pursuing a case against Hamas would be straightforward legally and politically.

What about a war crimes case against Israel?

There are grounds for the Justice Department to scrutinize Israel's actions in the war as well, legal experts say, although the path forward would likely be more complicated.

"I think that possibility exists that the Israeli Defense Forces, in particular situations, could be seen as committing war crimes," Scheffer said. "It depends, of course, on the evidence."

Israel says its actions in Gaza have been in accordance with the laws of war.

But some 32,000 Palestinians have been killed in Gaza and more than 75,000 have been wounded, according to Gaza's Health Ministry.

Israel has the right to self-defense and to use military force against Hamas, Scheffer said, but he added that the scale of human suffering and the enormity of the destruction in Gaza demands examination of Israel's actions.

"The use of firepower by the Israeli Defense Forces has its legitimacy," Scheffer said. "But the question is precisely how is that being done? What is the precise impact on civilians? What is the decision-making by the Israeli Defense Forces and how it uses its military force? All of that is up for scrutiny."

The top UN rights officials and international rights groups say several Israeli actions could amount to war crimes under international law: the limits Israel has placed on humanitarian aid, potentially using starvation as a weapon of war; Israel's forcible displacement of civilians; its extensive destruction of property; and its alleged indiscriminate attacks on civilians and civilian infrastructure.

UN experts also have expressed alarm over reports of Palestinian women being subjected to extrajudicial killings, sexual assault and other inhumane treatment by Israeli forces. Israel denies the allegations.

Even under the narrower lens of U.S. war crimes law, experts say there is a basis for the Justice Department to investigate Israel's actions.

"Should there be political will to prosecute, the Justice Department would have the authority to do a wide range of investigations and prosecutions," said Sadat, the former special adviser on crimes against humanity to the International Criminal Court prosecutor.

Any U.S. investigation, however, would likely face challenges, including basic access to evidence.

"You would have no access right now to Gaza unless you got access through Israeli cooperation," Sadat said. "And if you were investigating Israelis, I don't think they would cooperate very readily."

DOJ could look for a case involving a U.S. citizen

There are also other considerations — both political and geopolitical — that could stand in the way of any war crimes prosecution, particularly one that would involve a close ally like Israel.

The U.S. war crimes statute requires the attorney general or another senior Justice Department official to approve a war crimes prosecution and certify that it is "in the public interest and necessary to secure substantial justice."

In some instances, the Pentagon and State Department are also allowed to weigh in on the potential benefits or adverse consequences for Americans, U.S. officials or troops of pursuing such a prosecution.

The U.S. has only brought one case to date under the U.S. war crimes statute — the prosecution in December against the four Russian soldiers for allegedly abducting and torturing and American civilians in southern Ukraine.

And it's that hook — the involvement of a U.S. citizen — that experts say would simplify what could be a politically fraught decision to pursue a case involving a close U.S. ally like Israel.

"I think it would be politically and pragmatically easier if the victims were of American citizenship," Scheffer said. "That's a more manageable investigation and prosecution for the Justice Department."

That's also the case if the suspected perpetrator is an American citizen.

"Nothing is preventing the Justice Department from looking at this issue, whether it be perpetrators of Israeli citizenship or of Palestinian identity," Scheffer said.

There are thousands of U.S. citizens caught up in the Israel-Hamas conflict. U.S. officials have said some 600 American citizens were trapped in Gaza when the conflict began, although many have since left. The Israeli military, meanwhile, says an estimated 23,380 Americans are currently serving in its ranks.

There are also Americans in the Gaza Strip providing humanitarian aid.

This week, a dual U.S.-Canadian citizen, Jacob Flickinger, was killed by an Israeli airstrike on a convoy of vehicles from the humanitarian group World Central Kitchen. Aid workers from the UK, Australia, Poland and Palestine were also killed. At least one of the vehicles had the organization's logo on the roof.

Israel says the strike was a "grave mistake."

Carmen Cheung, the executive director of the Center for Justice and Accountability, said war crimes prosecutions require resources and political will. And she acknowledged that investigating and prosecuting Israeli forces would be tricky, but — if the evidence supports it — taking that step would deliver a powerful message.

"If the U.S. could do that, it would send a signal that its War Crimes Act is meant to apply to everyone," she said. "And it really does what it says on the box, which is provide justice for victims of war crimes. Everywhere."

Copyright 2024 NPR. To see more, visit https://www.npr.org.

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Middle East crisis — explained

The conflict between Israel and Palestinians — and other groups in the Middle East — goes back decades. These stories provide context for current developments and the history that led up to them.

What is a war crime, and who gets held accountable? Here's what you need to know

Scott Neuman

Palestinian militants fire rockets into Israel from Gaza Strip, Oct. 7. Sameh Rahmi/NurPhoto via Getty Images hide caption

Palestinian militants fire rockets into Israel from Gaza Strip, Oct. 7.

The ongoing conflict between Israel and Hamas has led to accusations of war crimes on both sides, after Israeli civilians were targeted in Hamas' Oct. 7 attack and Israel responded with airstrikes on the densely populated Gaza Strip.

Under these conditions, protecting civilians can prove difficult or impossible. But combatants are bound by international humanitarian law to minimize the impact on populations.

Here's what to know.

In war, what are the obligations of nations, their soldiers and groups such as Hamas?

Although the history of international law regulating warfare goes back to the first Geneva Convention of 1864 , World War II — in which twice as many civilians as fighters were among the tens of millions killed and the Nuremberg Trials that held Nazi leaders to account for atrocities — spawned interest in expanding the scope of the agreement.

The 1949 Geneva Convention established Article 3 , delineated combatants from noncombatants and set down the obligations of governments and militaries on how to minimize casualties and the suffering of civilians in wartime.

International humanitarian law "basically grounds the parties to a conflict," says Fernando Travesí, executive director of the New York-based International Center for Transitional Justice, which works with victims of massive human rights violations. Armies, he says, have the right to go to war, "but that exercise of violence has limits."

The Geneva Convention has been agreed to by 196 states and serves as the international standard on the treatment of civilians, as well as prisoners of war and sick and wounded soldiers.

In a practical sense, every government in the world subscribes to these rules, says Kenneth Roth, a visiting professor at Princeton's School of Public and International Affairs and former executive director of Human Rights Watch. "I think it's important to stress that these [rules] are not the concoctions of human rights groups. These are not idealistic, pacifist rules. These are the rules that the militaries themselves adopted for themselves," he says.

People mourn as they attend the burial and funeral of five Kutz family members in Israel. Aviv, 54 years old, Livnat, 49 years old, Rotem, 19 years old, Yonatan, 17 years old, and Yiftach, 15 years old, were murdered in their home by Palestinian militants who infiltrated into the Israeli Kibbutz of Kfar Aza last week. Ilia Yefimovich/dpa via Reuters hide caption

People mourn as they attend the burial and funeral of five Kutz family members in Israel. Aviv, 54 years old, Livnat, 49 years old, Rotem, 19 years old, Yonatan, 17 years old, and Yiftach, 15 years old, were murdered in their home by Palestinian militants who infiltrated into the Israeli Kibbutz of Kfar Aza last week.

Who can be held accountable under international humanitarian law?

A violation of protections under the Geneva Convention, such as the prohibition against deliberately targeting civilians, opens up leaders and common soldiers alike to prosecution. Such prosecutions could be handled by an international court or tribunal, or any nation exercising "universal jurisdiction" — a principle that allows any country's courts to prosecute war crimes.

Mounting Syrian War Crime Cases Raise Hopes For Justice Against A Brutal Regime

Universal doctrine applies equally to Israel and Hamas, the militant group that governs the Gaza Strip , as well as Islamic Jihad, a small extremist group that has also carried out attacks against Israel.

Hundreds killed in explosion at a crowded Gaza hospital

Israel, like the United States and Russia, is not among the 123 states that are party to the Rome Statute , which established the International Criminal Court in The Hague, Netherlands. The Palestinians, however, joined in 2015, so the ICC has jurisdiction over the West Bank and Gaza Strip.

Here's the available evidence of what happened at Al Ahli Arab Hospital in Gaza

"That means that any Palestinian national can be prosecuted," Roth says.

And, he adds, it also means that any Israeli war crime committed inside Palestinian territory can also be prosecuted.

Satellite imagery of the Al Ahli Arab Hospital in Gaza after a catastrophic explosion earlier this week. Maxar/DigitalGlobe/Getty Images hide caption

Satellite imagery of the Al Ahli Arab Hospital in Gaza after a catastrophic explosion earlier this week.

A United Nations-established body known as the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem and Israel, says it has begun "collecting and preserving evidence of war crimes committed by all sides" since the start of the conflict following the Hamas attacks.

On Friday, Amnesty International said it had documented evidence that Israeli forces were failing to discriminate between military targets and civilians. It also called on Hamas to release civilian hostages and immediately end indiscriminate rocket fire.

What constitutes a war crime?

Civilians inevitably get caught between warring parties, but the norms of international humanitarian law require that "you never target civilians, you never indiscriminately fire on a civilian area, you never launch an attack that will have a disproportionate impact on the civilian population," according to Roth.

"Premeditated, planned and deliberate killing of civilians — that's a clear war crime," the ICTJ's Travesí says.

By that definition, he says, the Oct. 7 attack by Hamas that targeted Israeli civilians, killing some 1,400, clearly fits within the definition of a war crime. Hamas militants took about 200 others hostage — an act also explicitly prohibited by the Geneva Convention.

Despite Hamas being an irregular force, it is subject to the same international humanitarian law as Israel Defense Forces soldiers, says Oona Hathaway, a Yale Law School professor and founder and director of the school's Center for Global Legal Challenges.

"International humanitarian law applies not just in conflicts between states ... between ... a modern sovereign state and another sovereign state, but also between states and nonstate actors," she says. "So here we've got a conflict between Hamas, which is a nonstate actor group, and a state that is Israel."

And Hamas' attacks, brutal killings and kidnapping of Israelis, clearly constitute war crimes, says Hathaway, coauthor of The Internationalists: How a Radical Plan to Outlaw War Remade the World.

Civilians often find themselves in the wrong place at the wrong time — near, for example, what is presumed by combatants to be a legitimate military target. Those cases can be a gray area for military decision-makers and in international humanitarian law, where the principle of proportionality applies.

An attack would not be proportional "if the civilian injury, civilian death or damage to civilian objects expected from such an attack would be excessive in relation to the concrete and direct military advantage anticipated from that attack," explains Tom Dannenbaum, associate professor of international law at the Fletcher School at Tufts University.

"That's obviously a complicated process and is often subject to debates about exactly when that line is crossed," he says.

The densely populated Gaza Strip presents "a huge challenge" for the Israeli military, Travesí acknowledges. Fighting an irregular force such as Hamas, whose fighters operate in urban areas and don't wear uniforms, makes that challenge even more difficult, says Roth.

"It can be difficult for the attacker to distinguish between a combatant and a noncombatant. But that difficulty does not absolve the attacking party from the duty always to distinguish between combatants who can be targeted and noncombatants who cannot be," Roth says.

In recent days, Israel Defense Forces told Gazans to evacuate the north of the territory during an apparent ramped-up bombardment in retaliation for Hamas' attack on Israel, and in anticipation of an expected ground assault.

That could be seen as a humanitarian gesture, "but it has been done in a wholly inhumane way, because to order 1.1 million people to evacuate in the course of a few hours is obviously impossible," Roth says. "It's cruel, [and] it creates panic."

Civil defense teams and residents carry injured people as they launch a search and rescue operation around the buildings that were destroyed after Israel's attacks on the Gaza Strip, in Khan Younis, Gaza, Tuesday. Mustafa Hassona/Anadolu via Getty Images hide caption

Civil defense teams and residents carry injured people as they launch a search and rescue operation around the buildings that were destroyed after Israel's attacks on the Gaza Strip, in Khan Younis, Gaza, Tuesday.

Preventing or withholding medical supplies and medical care for civilian population "could amount to a war crime as well, because that could amount to a collective punishment," which is also a violation of the Geneva Convention , according to Travesí.

And simply warning the population to leave to avoid further harm does not allow a military force to wash its hands of responsibility, Dannenbaum notes.

"Whether or not individuals comply with that warning does not change their status," he says. "So if they don't move, if they remain in that location, their civilian status endures and has precisely the same weight in the context of proportionality as it would have absent the warning."

How can war crimes be prosecuted?

Simply gathering evidence of war crimes can be extremely difficult amid the fog of war, Travesí says.

"That's why many, many human rights activists and many journalists, they collect a lot of documentation and evidence that might be very, very important for the future or accountability processes," he says.

In a landmark case, a German court convicts an ex-Syrian officer of torture

Suspects can be brought before the International Criminal Court at The Hague or ad hoc tribunals, or at the national level, something that the ICC encourages, Dannenbaum says.

"It defers to genuine national prosecutorial efforts. In this way, it's different from the former Yugoslav and Rwanda tribunals, which had primary jurisdiction. So the International Criminal Court actually encourages national governments to prosecute their own offenders."

In 1961, Israel itself, for example, famously exercised universal jurisdiction to try Nazi officer Adolf Eichmann for his role in the Holocaust and war crimes committed during World War II. That trial was broadcast around the world.

However, justice at the international level can be slow, complex — and frequently unsatisfying.

"In any conflict in the world, you can't have the expectation that you will prosecute everybody," Travesí says. "So, you have to choose some. You have to do some selection and prioritization of cases."

In other words, top leaders may be held accountable for war crimes, while rank-and-file soldiers are able to evade justice.

When it comes to bringing prosecutions of war crimes, "The ICC has not had a high success rate," Dannenbaum acknowledges.

Ukraine invasion — explained

Charging putin for potential war crimes is difficult, and any penalty hard to enforce.

Even so, an international arrest warrant could be executed by any of the 123 ICC member nations. Indeed, they would be required to do so. The accused, Dannenbaum says, "would take a significant risk in traveling" to any member state.

"That's the reason that [Russian President] Vladimir Putin did not travel to South Africa for the BRICS summit this summer," he says, referring to the international meeting of emerging economies that took place in Johannesburg in August. "South Africa would have had an obligation to arrest him, because there was an arrest warrant from the ICC — and South Africa is an ICC state party."

• israel-palestinian conflict
• civilian casualties
• Geneva Conventions
• humanitarian law
• international law
• International Criminal Court
• Palestinians

War Crimes Research Office

Over 25 years of promoting accountability for atrocity crimes through teaching, training, research, and advocacy.

AUWCL established the WCRO as part of its commitment to promoting and enforcing human rights and humanitarian law. For 25 years, the WCRO has served as a critical resource for tribunals and other organizations promoting accountability for atrocity crimes at the international, regional and domestic level. At the same time, it has offered students an unparalleled opportunity to engage in projects promoting accountability for these crimes, helping students build essential legal and advocacy skills and establish connections critical to practicing in the fields of international criminal law and international justice. The WCRO complements this work through educational and advocacy initiatives, including the Hague Summer Program, its War Crimes Speaker Series, participation in conferences and workshops, research and publications.  

Our Projects 

Featured news & events.

WCRO Director Susana SáCouto Attends ASIL Conference and Participates in Several Panels at ASIL's 117th Annual Meeting

WCRO Director Susana SáCouto attends the 2023 American Society of International Law (ASIL) 117th Annual Meeting and participates in three separate panels. Director SáCouto serves as the moderator of a panel entitled "A Hopeful Conversation: Overcoming impunity for sexual and gender based violence." During the "Women in International Law Interest Group (WILIG)" Business Meeting, Director SáCouto is awarded the Scholarship Prize for the book "Gender and International Criminal Law," with co-editors Valerie Oosterveld and Indira Rosenthal, and serves as a speaker on a panel discussion focused on how gender has become part of the mainstream of international law, how that mainstream sometimes misunderstands gender, and how gender is still excluded from the mainstream in certain ways. Finally, Director SáCouto serves as a panelist in the Closing Plenary entitled "Pursuing Global Accountability for Atrocity Crimes: Needs, Challenges and the Path Forward."

WCRO, Academy and ReLeG Host 3rd Workshop on Using Strategic Litigation on Gender-Based Violence in Latin America

The War Crimes Research Office (WCRO), the Academy on Human Rights and Humanitarian Law (Academy) and the Latin American Network for Gender-based Strategic Litigation (ReLeG) hosts the Workshop on Strategic Litigation on Gender-Based Violence in Latin America (3ra Mesa de Discusión sobre Litigio Estratégico en Materia de Violencia de Género en América Latina) at WCL on March 23 and 24, 2023. This conference, funded by UN Women and supported by the Office of the High Commissioner for Human Rights (OHCHR), convenes 44 Latin American legal professionals who work to promote accountability for sexual violence and other forms of gender violence. The event includes ReLeG members from Argentina, Chile, Colombia, Guatemala, Peru, El Salvador, Mexico and Venezuela, as well as legal professionals from Brazil, Nicaragua, and Uruguay.

WCRO Director Susana SáCouto Moderates International Suite Talk: The Practice of International Courts

WCRO Director Susana SáCouto moderates an International Suite Talk on "The Practice of International Courts: Cross-fertilization, Cooperation and Competition Among International Courts and Tribunals" with Chiara Giorgetti, Professor of Law at University of Richmond School of Law and Rebecca Hamilton, Professor of Law at Washington College of Law. The discussion focuses on the recently published book "Beyond Fragmentation," edited by Chiara Giorgetti, and Mark Pollack, Professor of Political Science and Jean Monnet Chair at Temple University.

WCRO Co-Sponsors "The Evolution of International Criminal Procedure: From Genocide to Ecocide | A Conversation with Giovanni Chiarini"

On February 14, 2023, the War Crimes Research Office co-sponsored "The Evolution of International Criminal Procedure: From Genocide to Ecocide | A Conversation with Giovanni Chiarini." Giovanni Chiarini, an Italian Attorney, International Law Scholar, and Scholar in Residence at Texas Tech University School of Law, presented a lecture on international criminal tribunals from Nuremberg and Tokyo up to the establishment of the ICC in the Hague. The event was sponsored alongside the Tech, Law and Security Program (TLS), the Office of International and Comparative Legal Studies (ICLS), and the International Law Student Association (ILSA).

WCRO Hosts Discussion on the "Military Coup in Myanmar: 2 years and the fight for democracy goes on"

The War Crimes Research Office hosts a discussion by current and former WCL students from Myanmar, Thi Thi Han and Alex Kaung Myet Ahkar, to discuss the current situation in Myanmar and recent developments in justice and accountability efforts. Access more resources on Myanmar:

WCRO 2022 Annual Newsletter

Read more about the WCRO's accomplishments this year.

WCRO Invites Students to an Interactive Hague Summer Program Information Session

The War Crimes Research Office invites you to an interactive session on the 2023 Hague Summer Law Program with Professor SáCouto and alums of the program. All JD/LLM students and international students are invited to attend the session on November 30 at 12:00pm in Room Y403! Summer Program Alums Ben Crawford (Hague Program 2022) and Natalie Landau (Hague Program 2022) will be joining us to share their experience and answer your questions ! Please RSVP here:

Newly Published Book"Gender and International Criminal Law," co-edited by WCRO Director Susana SáCouto, Receives ASIL WILIG Scholarship Prize

The newly published book "Gender and International Criminal Law," co-edited by WCRO Director Susana SáCouto, Valerie Oosterveld, and Indira Rosenthal, receives the American Society of International Law (ASIL) Women in International Law Interest Group (WILIG) Scholarship Prize for Best Book. The prize recognizes excellence in international scholarship surrounding women and girls, gender, and feminist topics.

WCRO Director Susana SáCouto Moderates Panel on "Assessing International Justice: Ukraine and Beyond"

The War Crimes Research Office, in partnership with AU International Law Review, hosts a luncheon panel on "Assessing International Justice: Ukraine and Beyond" as part of the International Legal Studies Program's 40th Anniversary Celebrations. WCRO Director Susana SáCouto moderates the panel, which features video remarks by Karim A. A. Khan KC (Prosecutor of the ICC), followed by remarks by Judge Ivana Hrdlicková (President of the Special Tribunal for Lebanon), Diane Orentlicher (Professor of Law, AUWCL), Christian De Vos (Director of Research and Investigations at Physicians for Human Rights).

WCRO Director Susana SáCouto attends Women and International Law conference at the Max Planck Institute Luxembourg for Procedural Law

WCRO Director Susana SáCouto attends the Women and International Law conference gathered at the Max Planck Institute Luxembourg for Procedural Law on October 13-14. The event features discussion of the contributions for the forthcoming “Handbook on Women and International Law,” to be published by Oxford University Press. Director SáCouto serves as a panelist, presenting on "Feminist Approaches to Victim Witnesses and Victim Participants in Atrocity Crime Trials for Sexual and Other Forms of Gender-based Violence: Lessons Learned from Domestic Prosecutions in Latin America."

WCRO Director Susana SáCouto interviewed by RFE for story entitled "Prosecution of Russian leaders - difficult, but possible"

WCRO Director Susana SáCouto discusses the possibility of prosecuting Russian leaders with atrocity crimes and aggression in the context of the war in Ukraine in an interview by Radio Free Europe's Expose programme, entitled "Prosecution of Russian leaders - difficult, but possible".

The Rockefeller Foundation publishes the second Bellagio Bulletin featuring WCRO Director Susana SáCouto and Co-Director of the Academy on Human Rights and Humanitarian Law Claudia Martin reflecting on the Latin American Network of Strategic Gender Litigation that emerged as a result of their conference at Bellagio Center in 2017

WCRO Director Susana SáCouto joins Claudia Martin, the co-director of the Academy of Human Rights and Humanitarian Law at AUWCL, and Daniela Kravetz, a lawyer specializing in human rights, international criminal law, and gender violence, to discuss the Latin American Network of Strategic Gender Litigation that emerged as a result of their conference at Bellagio Center in 2017. Scroll down Bulletin to access their story at:

Sydney Centre for International Law hosts a panel for "Gender and International Criminal Law" edited by WCRO Director Susana SaCouto with Prof. Valerie Oosterveld and Indira Rosenthal

Sydney Centre for International Law hosts a launch of the book "Gender and International Criminal Law" co-edited by Prof. Susana SáCouto, Prof. Valerie Oosterveld and Indira Rosenthal. In the panel, participants heard from some of the book's Australian authors and participated in a live 'question and answer' session with all panelists.

Oxford University Press publishes "Gender and International Criminal Law," co-edited by Prof. Susana SáCouto

On July 14, 2022, Oxford University Press published Gender and International Criminal Law, edited by Prof. SáCouto with Prof. Valerie Oosterveld and Indira Rosenthal. The book provides an in-depth examination of how gender is perceived and analyzed in international criminal law, identifies key gaps in the understanding of gender within international criminal law, and offers recommendations for how gender, including sexual violence and other gender-based crimes, can be more meaningfully addressed by international courts and tribunals.

WCRO Director Susana SáCouto serves as panelist on a panel organized by USIP entitled "Justice and Accountability for Khmer Rouge Atrocities: Perspectives from the United States and Cambodia"

On July 6, 2022, WCRO Director SáCouto serves as a panelist on a panel organized by the United States Institute of Peace (USIP) entitled "Justice and Accountability for Khmer Rouge Atrocities: Perspectives from the United States and Cambodia." This event was part of a series highlighting themes from “Imagine: Reflections on Peace,” a multimedia exhibit from USIP and the VII Foundation that explores the themes and challenges of peacebuilding through an immersive look at societies that suffered — and survived — violent conflict. The recording of the session is available at:

WCRO Director Susana SáCouto interviewed for an article by Jesse Greenspan, entitled "What Is a War Crime?"

WCRO Director SáCouto is interviewed for an article by Jesse Greenspan, entitled: "What Is a War Crime?" For centuries—and especially since World War II—countries have attempted to define the rules of war and determine punishment for violators.

WCRO Director Susana SáCouto interviewed in a segment on: "The Latest On Ukraine, Plus Is Putin Committing War Crimes?"

WCRO Director SáCouto is interviewed on KPCC - NPR News for Southern California AirTalk with Larry Mantle in a segment on: The Latest On Ukraine, Plus Is Putin Committing War Crimes?

WCRO 2021 Annual Newsletter

Register now for the Summer Program in International Criminal Law and International Legal Approaches to Terrorism!

Registration is open now for the Summer Program in International Criminal Law and International Legal Approaches to Terrorism! (The Hague Program) This year's program will run online from June 1-25, and gives students the opportunity to interface with key practitioners, experts, and institutions in international law. Click "read more" to learn more!

WCRO 2020 Annual Newsletter

WCRO Co-Hosts Expert Meeting on Strategic Litigation on Gender-Based Violence in Latin America

On 21 and 22 October, War Crimes Research Office Director Susana SáCouto and Academy on Human Rights and Humanitarian Law Co-Director Claudia Martin co-hosted a two-day online expert meeting with colleagues from the Women's Rights and Gender Section of the Office of the High Commissioner for Human Rights and the Grotius Centre for International Legal Studies of Leiden University on Strategic Litigation on Gender-Based Violence in Latin America.

Reproductive Injustice: Forced Sterilization in ICE Detention

On Wednesday, September 30, the WCRO cosponsored a panel on “Reproductive Injustice: Forced Sterilization in ICE Detention” with the Women and the Law Program, Office of Public Interest, Academy on Human Rights and Humanitarian Law, Center for Human Rights and Humanitarian Law, and International Human Rights Law Clinic. The panel focused on the recent whistleblower report that that ICE is subjecting detainees to forced sterilizations and medical neglect at an immigration detention facility in Georgia, and explored possible legal and other advocacy strategies for justice under immigration law, human rights law, and international criminal law. Click "read more" for more information and a link to a video of the panel.

WCRO Director Joins Digital Dialogue on the National Prosecution of CRSV in Guatemala and Colombia

On Tuesday, September 29, WCRO Director Susana SáCouto participated in the UN Team of Experts on the Rule of Law and Sexual Violence in Conflict’s Digital Dialogue series panel on “The National Prosecution of CRSV in Guatemala and Colombia: Closer to a Victim-Centered Justice?” Click "read more" for more information and a link to video of the discussion.

Careers in U.S. Criminal and Civil Litigation of Serious Human Rights and Humanitarian Law Violations

On Thursday, September 17, the WCRO hosted a panel on “Careers in U.S. Criminal and Civil Litigation of Serious Human Rights and Humanitarian Law Violations." Four litigators, including three WCL alumnae, joined us to discuss their career paths and the incredible work they are doing today pursuing accountability for serious human rights and humanitarian law violations within the U.S. justice system. Click "read more" for more information and a link to a video of the panel.

Welcome Class of 2023!

We are excited to welcome the class of 2023 to WCL this fall! While our semester may look a bit different than usual, we are thrilled to offer many ways to get involved with the WCRO from your first day of law school. Click through to check out some of our amazing opportunities!

WCRO Alumnus Christian De Vos Publishes New Book on the ICC's Complementarity Principle as a 'Catalyst for Compliance'

AU/WCL alumnus Christian De Vos has recently published a new book with Cambridge University Press, Complementarity, Catalysts, Compliance: The International Criminal Court in Uganda, Kenya, and the Democratic Republic of Congo.

WCRO 2019 Annual Update

Read more about the WCRO's achievements this year.

Partnership with UN Women on Documenting Good Practice on Accountability for Conflict-Related Sexual Violence in Guatemala

The War Crimes Research Office, Academy on Human Rights and Humanitarian Law, and Women and the Law Program are thrilled to partner with UN Women on the “Documenting Good Practice on Accountability for Conflict-Related Sexual Violence in Guatemala” Project.

Summer Law Program in The Hague

**Due to the COVID-19 outbreak, American University Washington College of Law has suspended study abroad programs for summer 2020, including the Summer Law Program in The Hague. However, WCL is pleased to offer the program courses this year as the 2020 Online Summer Program in International Criminal Law and International Legal Approaches to Terrorism. Please click "Learn More" below to find out how to enroll in this year's program.**

The Palgrave Handbook of Criminology and War pp 1–21 Cite as

Introduction: The Criminology of War, What Is It Good For?

• Ross McGarry 3 &
• Sandra Walklate 3  
• First Online: 23 August 2016

1156 Accesses

3 Citations

During 2014, Ruth Jamieson produced a long-awaited edited collection entitled The Criminology of War , published by Ashgate. This substantial reader evidenced a wide-ranging collection of progressive literature—sourced from both within and outwith criminology—relating to the study of war. Despite the existence of such extant literature, however, in the opening comments, it is noted that a sustained engagement and awareness of war as a criminological concern has not always been evident. Jamieson (2014: xiii) observes that as an area of ‘intellectual curiosity’ war has had intermittent attention paid to it by criminology as a discipline, with interest waxing and waning as wars and armed conflicts have emerged and seceded throughout the decades. Moreover, it is noted that when war has been addressed it has been previously treated as a ‘bounded historical episode with discernable beginning and end points’ (Jamieson 2014: xiii) rather than as articulations of power, power relations and (geo)politics within the international domain. The following year in 2015, we produced an edited collection of our own entitled Criminology and War: Transgressing the Borders , published by Routledge (see Walklate and McGarry 2015). This contained a differently constituted set of original essays intended to make some new conceptual inroads into the ways in which we—as criminologists—engage with war as a theoretical, methodological and empirical endeavour. Although noting within our introduction that ‘criminology, and indeed its sub-discipline victimology, have yet to address war in the substantive ways demonstrated by other disciplines’ (McGarry and Walklate 2015a: 2), our intention was to debunk the myth that criminologists had failed to engage with war at all. Instead, we drew attention to some of the substantive criminological areas where war had been studied, theorised and researched from within the margins of the discipline. Drawing on a previous discussion raised by Hagan and Greer (2002), we professed that the marginal nature of debates regarding war within criminology was due to this constituting ‘deviant knowledge’ (qua Walters 2003), comprehension that would be insouciant to the centrefolds of a criminological enterprise invested in by state institutions.

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McGarry, R., Walklate, S. (2016). Introduction: The Criminology of War, What Is It Good For?. In: McGarry, R., Walklate, S. (eds) The Palgrave Handbook of Criminology and War. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-43170-7_1

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Investigating war crimes using OSINT: A guide for journalists

Dr. Manisha Ganguly discussed at the iMEdD International Journalism Forum the techniques journalists can employ to investigate potential war crimes using information readily accessible to the public.

This article, published by iMEdD, is available for republication under a Creative Commons license.

What does a 20th century photographer have in common with an investigative journalist in 2023? Both must place emphasis on observation. “You have to look, and looking is so difficult.” With these words attributed to French photographer Henri Cartier-Bresson , Dr. Manisha Ganguly started her workshop in Athens, Greece, as part of the iMEdD International Journalism Forum . The workshop titled “Investigating war crimes using OSINT ” offered participants insights into the legal framework surrounding war crimes, as well as basic principles and methodologies when working with Open Source Intelligence (OSINT) sources. Additionally, it offered tips and best practices to safeguard journalists investigating war crimes through OSINT.

15 Tips for Investigating War Crimes

GIJN – 15 tips and techniques for investigating war crimes.

What qualifies as a war crime?

The initial task for a journalist involves the ability to recognise what qualifies as a war crime. Consequently, understanding the legal framework applicable during times of war is essential. The four Geneva Conventions , established in 1949, form the foundational legal principles governing wartime conduct. The distinction between an armed conflict and other situations is defined by the International Committee of the Red Cross (ICRC). “I know it sounds strange, but the mere act of going to war doesn’t automatically qualify it as an armed conflict subject to International Humanitarian Law,” Manisha Ganguly pointed out during her workshop. That is why the International Committee of the Red Cross outlines the definition of International Humanitarian Law (IHL) and further specifies the situations in which it is applicable. Additionally, it supplies media professionals with an array of helpful sources concerning International Humanitarian Law. The list of actions considered war crimes is detailed in Articles 7 and 8 of the Rome Statute of the International Criminal Court.

The Global Investigative Journalism Network’s guide to war crimes explains that, according to contemporary international law, the term “war crime” refers to “a subset of serious violations of International Humanitarian Law that lead to individual criminal responsibility.” However, it is essential to acknowledge that a violation of the law of war doesn’t always satisfy the criteria to be classified as a “war crime.”

In her workshop, Manisha Ganguly outlined the four main categories of war crimes: genocide, crimes against peace, crimes against humanity, and violations of the customs applicable in international armed conflict.

What is OSINT?

Open Source Information Sources (OSINT), as per Manisha Ganguly, refer to “information that is publicly accessible to everyone, which can be obtained legally and ethically from public sources.” The surge in Internet use and the resulting “information explosion,” coupled with technological advancements such as social media and satellites, has significantly contributed to the widespread adoption of OSINT. Journalists and researchers are increasingly opting for open source sources in their reporting and research. 

Know what to look for

Examples of war crimes documented using OSINT include:

• Targeting civilians and civilian facilities not used for military purposes.
• Attacks on protected targets, such as hospitals and schools.
• Targeting first responders (doctors, rescuers, journalists), also known as double tap attacks.
• Employing prohibited weapons, such as cluster munitions, chemical, and biological weapons.
• Desecrating enemy corpses.
• Desecrating civilian bodies.
• Conducting hostilities against surrendered opponents.
• Committing acts of sexual violence in times of war.
• Torturing individuals.
• Utilising child soldiers.

When it comes to open-source research on war crimes, the best source is simply social media Manisha Ganguly, Investigative Journalist/Academic

Know where to look

“When it comes to open-source research on war crimes, the best source is simply social media,” Manisha Ganguly emphasised during her workshop. Facebook, Telegram, Twitter, Instagram, TikTok—platforms primarily associated with entertainment for many—can serve as valuable resources for investigative journalists. Particularly when concentrating on a specific geographic area, an understanding of locally prevalent social media is crucial. For instance, in Eastern Europe, platforms like Telegram and VK boast extensive user bases. A journalist aiming to report on war crimes in Ukraine will discover significant information on these platforms.

Tools dedicated to movement and transport tracking can offer valuable resources as well. Marine Traffic specializes in vessel tracking, while Flightradar 24 and ADSB Exchange focus on aircraft tracking.

Ensuring the quality and credibility of our reporting is paramount, and this necessitates thorough verification of information sourced from social media and digital tools. Some of the tools that can aid in verifying information found in photos and videos on the Internet include InVid , Google Reverse Image Search , TinEye , RevEye, Yandex , Amnesty Video Verification , and Exiftool .

Geolocation and chronolocation offer additional methods for collecting and verifying information. Useful tools for these techniques include Google Earth , Yandex Maps , Sentinel Hub , Echosec , Wikimapia , and Suncalc . According to Manisha Ganguly, Liveuamap is recommended as the preferred tool for new journalists to begin utilising geolocation techniques.

Often, material posted on social media may be deleted and/or no longer publicly available. This is why it is essential to archive and back up all the data we collect from the internet. This can be accomplished by storing the data either on a physical hard drive or an online one, such as Google Drive . It’s important to highlight that storing data on Google Drive alters the metadata of digital files, rendering them unusable as evidence in criminal cases, including war crimes. Additional online tools like Hunchly , WayBack Machine , and Google Sheets can also provide assistance in this regard.

Power down the computer!

Despite the significance of online research, in the realm of the internet and social media, collaboration with human sources is a crucial step, yet frequently disregarded. Reaching out to individuals and documenting testimonies in the field can unearth new facts regarding a potential war crime incident. “Establishing an emotional connection with people is essential. Data can be very clinical. That connection ensures a sense of solidarity with the victims of a war crime.”

Investigating war crimes: What is legal in war?

This chapter by GIJN lays out a basic overview of the laws that apply in armed conflict.

Safety and Protection

In instances where the investigation uncovers criminal activity attributed to specific individuals and/or groups, the principle of the right of reply comes into play. Consequently, journalists should reach out to the individuals implicated, affording them the opportunity to respond, either by denying or admitting their involvement or guilt.

When it comes to security in OSINT research, essential measures include using a VPN, effectively managing passwords, implementing two-factor authentication, and regularly updating the relevant software.

If needed, journalists can reach out to a non-profit organisation specialising in digital (and non-digital) safety issues for journalists and internet users. As an illustration, Manisha Ganguly highlighted organisations such as Access Now , Committee to Protect Journalists , Reporters Without Borders , and The Citizen Lab as valuable resources.

An often overlooked factor in war crimes investigations is the psychological trauma experienced by investigative journalists. In the workshop, strategies for preventing and mitigating trauma were provided to journalists involved in reporting on war crimes through OSINT.

• Avoid immediately diving into content that you know will be distressing. Take some time to mentally prepare yourself for what you are about to see.
• When watching videos with graphic content, consider turning off the sound.
• Cover part of the screen while watching videos to enhance concentration and shield yourself from particularly harsh images.
• Write down and analyse the content you engage with to minimise the necessity for frequent re-watching, which can lead to retraumatisation.
• Take regular breaks, ideally every 45 minutes to an hour.
• Engage in conversations with people close to you. Trauma can stem from the journalist straddling two different worlds—exposure to the harsh images of war in their professional life and their personal life. Open discussions with loved ones can bridge these worlds and contribute to preventing the normalisation of the war and its effects.
• Avoid watching distressing content at night.
• Take frequent breaks and maintain a necessary distance from the investigation.

Manisha Ganguly’s workshop concluded with questions from the audience, addressing additional topics such as digital security for journalists, humanitarian aid in war zones, information verification, and misinformation in cases of war crimes.

Translated by: Anatoli Stavroulopoulou

A Human Rights Watch (HRW) report released on Thursday alleged that an Israeli airstrike conducted on a civilian apartment building on October 31, 2023, is a war crime. The report calls the attack, which resulted in 106 civilian deaths, including 54 children, “among the deadliest single incidents for civilians” since Israeli’s ground invasion of Gaza.

HRW conducted its investigation between January and March 2024. The building that was bombed was a six-story apartment building named the Engineers’ Building. It was occupied by civilians with a grocery that had electricity. HRW spoke to witnesses of the attack and family members of the deceased. It had access to “satellite imagery, 35 photographs, and 45 videos of the attack’s aftermath, as well as other relevant photographs and videos on social media.” However, it was unable to investigate the site as Israel has “repeatedly denied Human Rights Watch requests to enter Gaza over the last 16 years.”

The report stated that the airstrike was unlawful as HRW’s investigation found no evidence that there were military targets in the building. Four munitions were dropped on the building. HRW stated that Israel has not provided any justification for the attack. According to the witnesses, no warnings were given by Israel for civilians to evacuate the building. Witnesses told HRW that children were playing football outside the entrance at the time of the attack, and many people were using electricity to charge their phones in the grocery store below.

HRW called for accountability for the alleged war crimes and civilian deaths throughout the conflict in Gaza, stressing that a large number of causalities have been Palestinian children. HRW stated that the ICC is conducting an investigation into the alleged war crimes committed in Gaza and the West Bank from 2014 onward and urged governments to publicly support the ICC’s efforts in “delivering impartial justice.”

HRW also called for countries to cease the supply of arms to Israel to prevent their use for violation of laws of war. It stated that countries, notably the US, UK, Australia, France, Germany, Italy and Denmark, that continue to provide an unconditional supply of arms are “ignoring the mounting evidence of serious violations, including the strike on the Engineers’ Building.”

Senate approves purchase of Alaska

On April 9, 1867, the U.S. Senate voted to ratify the Treaty with Russia for the Purchase of Alaska and thereby approve the purchase of the territory from Russia for $7.2 million . Initially, the purchase was made to keep Alaska away from the British. It was politically unpopular with many Americans who denounced it is "Seward's Folly", after U.S. Secretary of State William Seward, who had lobbied for the purchase. Seward was later vindicated by the discovery of gold and oil in Alaska. Learn more about the Alaska Purchase from the U.S. State Department.

Last beheading in England

On April 9, 1747, Simon Fraser, Lord Lovat, became the last man to be beheaded in England when he was executed on Tower Hill for his part in the Highland rising of 1745. Learn more about the legal history and practice of beheading .

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Sellars, Kirsten. ""Crimes against peace" and international law." Thesis, University of Aberdeen, 2009. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=133994.

Aksar, Yusuf. "The 'ad hoc' tribunals and international humanitarian law." Thesis, University of Bristol, 2000. http://hdl.handle.net/1983/405a48d5-52b6-4cea-894e-30c7a402faed.

McDonald, A. M. "Rights to legal remedies of victims of serious violations of international humanitarian law." Thesis, Queen's University Belfast, 2003. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.273093.

Nortje, Windell. "The accountability of juveniles for crimes under international law." University of the Western Cape, 2016. http://hdl.handle.net/11394/5471.

Candelaria, Jacob. "Europe, the United States, and the international criminal court." Thesis, Monterey, Calif. : Springfield, Va. : Naval Postgraduate School ; Available from National Technical Information Service, 2003. http://library.nps.navy.mil/uhtbin/hyperion-image/03Jun%5FCandelaria.pdf.

Holm, Fanny. "Justice for victims of atrocity crimes : prosecution and reparations under international law." Doctoral thesis, Umeå universitet, Juridiska institutionen, 2017. http://urn.kb.se/resolve?urn=urn:nbn:se:umu:diva-138761.

LaVilla, Oriana H. D. "Reconciliation and The Rule of Law: The Changing Role of International War Crimes Tribunals." Scholarship @ Claremont, 2014. http://scholarship.claremont.edu/scripps_theses/439.

Darge, Tobias. "Kriegsverbrechen im nationalen und internationalen Recht unter besonderer Berücksichtigung des Bestimmtheitsgrundsatzes = War crimes in national and international law." [Berlin Heidelberg] Springer, 2008. http://d-nb.info/999263633/04.

Ojo, Victoria Olayide. "The Boko Haram violence from the perspective of International criminal law." Thesis, University of the Western Cape, 2015. http://hdl.handle.net/11394/5175.

Hersi, Mohamed Farah. "The possibilites of international prosecution against the former Somali militry regime for human rights abuses in Somaliland from 1981 - 1991: establishing individual criminal and civil responsibility under international law." Diss., University of Pretoria, 2008. http://hdl.handle.net/2263/8055.

Torrens, Shannon Maree. "Interrogating International Criminal Law through the Lens of Justice as Process: From Justice Beliefs to Justice Legacies." Thesis, The University of Sydney, 2019. https://hdl.handle.net/2123/21862.

Sonczyk, Barbara. "The anatomy of the war crime of attacking peacekeepers under international humanitarian law and international criminal law." Thesis, University of Westminster, 2014. https://westminsterresearch.westminster.ac.uk/item/964w0/the-anatomy-of-the-war-crimeof-attacking-peacekeepersunder-internationalhumanitarian-law-andinternational-criminal-law.

Romero, Jorge H. "Cyberespionage 2010 : is the current status of espionage under international law applicable in cyberspace? /." (Requires Adobe Acrobat Reader), 2001. http://stinet.dtic.mil/str/tr4%5Ffields.html.

Mugemangango, Paul. "Immunity from prosecution for genocide, crimes against humanity and war crimes: the case of heads of state." Diss., University of Pretoria, 2004. http://hdl.handle.net/2263/1088.

Reyes, Menéndez Valeria. "Children in war: Answers from International Law to the crimes of recruitment of child soldiers and sexual violence." IUS ET VERITAS, 2018. http://repositorio.pucp.edu.pe/index/handle/123456789/123713.

Furphy, Patricia. "Multivariate analysis of war crime behaviour : implications for the International Criminal Court." Thesis, Liverpool John Moores University, 2015. http://researchonline.ljmu.ac.uk/4409/.

Bohle, Eva. "Proving genocidal intent and the policy element :genocide in Darfur?" Thesis, University of the Western Cape, 2009. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_2738_1297749409.

The International Commission of Inquiry on Darfur (Commission) began its work in October 2004 and provided its final report only three months later on 25 January 2005.2 There, it concluded, inter alia, &ldquo that the Government of Sudan has not pursued a policy of genocide&rdquo and that at least the central Government authorities did not act with genocidal intent.3 However, these findings would not exclude the possibility that the atrocities committed by individuals against victims were carried out with the specific intent to destroy and therefore could possibly fulfil all necessary requirements of the crime of genocide.

King, Samantha Jane. "Locating moral responsibility for war crimes : the new justiciability of 'system criminality' and its implications for the development of an international polity." Thesis, University of Plymouth, 2002. http://hdl.handle.net/10026.1/421.

Kuner, Janosch O. A. "The war crimes trial against German Industrialist Friedrich Flick et al - a legal analysis and critical evaluation." Thesis, University of the Western Cape, 2010. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_1823_1363782732.

This research paper is an analysis of the case United States v Flick et al which took place in 1947 in Nuremberg, Germany. Friedrich Flick, a powerful German industrialist, and several high ranking officials of his firm were tried by a United States military tribunal for war crimes and crimes against humanity committed during the Third Reich. The  proceedings and the decision itself are the subject of a critical examination, including an investigation of the factual and legal background. The trial will be regarded in the historical context of prosecutions against German industrialists after World War II. Seen from present-day perspective, the question will be raised whether any conclusions can be drawn from the Flick case in respect of the substance of present-day international criminal law.  

Schuetze, Jennifer Johanna. "To cause or not to cause, that is the question : the prosecutorial standard for incitement at international criminal law." Thesis, McGill University, 2005. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=82670.

Verlage, Christopher. "Responsibility to Protect : ein neuer Ansatz im Völkerrecht zur Verhinderung von Völkermord, Kriegsverbrechen und Verbrechen gegen die Menschlichkeit /." Tübingen : Mohr Siebeck, 2009. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=016710994&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.

Wright, Crystal Renee Murray. "From the Hague to Nuremberg: International Law and War, 1898-1945." Thesis, North Texas State University, 1987. https://digital.library.unt.edu/ark:/67531/metadc501222/.

Seifert, Katharina Elena. "The scope of war crimes against peace-keeping personnel : Do Articles 8 (2) (b) (iii) and (e) (iiD ICC- Statute and 4 (b) SCSL- Statute fulfil the requirements of the principle of specificify in international law?" Master's thesis, University of Cape Town, 2011. http://hdl.handle.net/11427/12610.

Reike, Ruben. "The 'responsibility to prevent' : an international crimes approach to the prevention of mass atrocities." Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:16fdad2d-d295-4904-b730-bc7fe58d96c5.

Mitchell, David Scott. "Voicing the Silent War Crime: Prosecuting Sexual Violence in the Special Court for Sierra Leone." Miami University Honors Theses / OhioLINK, 2006. http://rave.ohiolink.edu/etdc/view?acc_num=muhonors1146448301.

Bertrand, Virginie. "Crimes de guerre au XXe siècle et juridictions pénales internationales." Thesis, Montpellier 3, 2012. http://www.theses.fr/2012MON30066.

Bardet, Marie. "La notion d'infraction internationale par nature : essai d'une analyse structurelle." Thesis, Bordeaux, 2020. http://www.theses.fr/2020BORD0242.

Ngameni, Herman Blaise. "La diffusion du droit international pénal dans les ordres juridiques africains." Thesis, Clermont-Ferrand 1, 2014. http://www.theses.fr/2014CLF10457.

Adonis, Bongiwe. "Immunity for serving Heads of State for crimes under International Criminal Law: an analysis of the ICC-indictment against Omar Al Bashir." University of the Western Cape, 2011. http://hdl.handle.net/11394/2910.

Cameron, Calla. "Grave Breaches: American Military Intervention in the Late Twentieth- Century and the Consequences for International Law." Scholarship @ Claremont, 2017. http://scholarship.claremont.edu/cmc_theses/1677.

Diop, Mamadou Falilou. "Essai de construction de poursuites d’auteurs de crimes internationaux à travers les mécanismes nationaux et régionaux." Thesis, Aix-Marseille, 2012. http://www.theses.fr/2012AIXM1066.

Ashfaq, Muhammad. "The crime of aggression : a critical historical inquiry of the just war tradition." Thesis, University of St Andrews, 2018. http://hdl.handle.net/10023/13671.

Devouèze, Nelly. "Le droit à l'intégrité physique et mentale dans la jurisprudence internationale pénale." Thesis, Paris 5, 2012. http://www.theses.fr/2012PA05D008.

Peterson, Ines. "Die Strafbarkeit des Einsatzes von biologischen, chemischen und nuklearen Waffen als Kriegsverbrechen nach dem IStGH-Statut /." Berlin : BWV, Berliner Wiss.-Verl, 2009. http://d-nb.info/994112998/04.

Hassan, Kamal. "Le statut des tribunaux ad hoc en droit international pénal." Thesis, Tours, 2015. http://www.theses.fr/2015TOUR1005/document.

Bouvier, Charlotte-Lucie. "La mémoire et le droit des crimes de guerre et des crimes contre l'humanité depuis la seconde guerre mondiale : comparaison Allemagne fédérale / France." Thesis, Poitiers, 2014. http://www.theses.fr/2014POIT3018/document.

Aivo, Gérard. "Le statut de combattant dans les conflits armés non internationaux : etude critique de droit international humanitaire." Thesis, Lyon 3, 2011. http://www.theses.fr/2011LYO30053.

Saldarriaga, Velásquez Giuliana Stephanie. "The legality of the intervention in Mali." Pontificia Universidad Católica del Perú, 2014. http://repositorio.pucp.edu.pe/index/handle/123456789/116032.

Estupiñan, Silva Rosmerlin. "Los crímenes de guerra en Colombia. Estudio desde el derecho internacional y desde el derecho colombiano." Doctoral thesis, Universitat de València, 2011. http://hdl.handle.net/10803/80915.

Dyukova, Yulia. "L’utilisation du droit international humanitaire par les organes chargés de la protection des droits de l'homme." Thesis, Paris 2, 2019. http://www.theses.fr/2019PA020014.

Lira, Cláudio Rogério Sousa. "A resposta ao terrorismo pelo direito: um crime transnacional e de natureza jurídica de tratado." Universidade do Vale do Rio dos Sinos, 2018. http://www.repositorio.jesuita.org.br/handle/UNISINOS/7476.

Bounda, Sosthène. "Le Comité international de la Croix-Rouge en Afrique centrale à la fin du XXe siècle : cas du Cameroun, du Congo Brazzaville, du Congo Kinshasa et du Gabon de 1960 à 1999." Thesis, Bordeaux 3, 2015. http://www.theses.fr/2015BOR30053/document.

Winters, Veronica Jane. "State-Corporate Crime in the Democratic Republic of Congo." Scholar Commons, 2013. http://scholarcommons.usf.edu/etd/4615.

Alendal, Oscar. "Aggressionsbegreppet : En komparativ studie av Förenta nationernas stadgas och Romstadgan för den Internationella brottsmålsdomstolens aggressionsbegrepp." Thesis, Uppsala universitet, Juridiska institutionen, 2018. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-342031.

Dubler, Robert Edward. "Crimes against humanity in international law." Thesis, Faculty of Law, 2006. http://hdl.handle.net/2123/5306.

Williams, Meagan Meernik James David. "Judicial creativity or justice being served ? a look at the use of joint criminal enterprise in the ICTY prosecution /." [Denton, Tex.] : University of North Texas, 2008. http://digital.library.unt.edu/permalink/meta-dc-9721.

Williams, Meagan. "Judicial Creativity or Justice Being Served? A Look at the Use of Joint Criminal Enterprise in the ICTY Prosecution." Thesis, University of North Texas, 2008. https://digital.library.unt.edu/ark:/67531/metadc9721/.

La, Rosa Aurélie. "Le concept d'enfant soldat et la Cour Pénale Internationale." Thesis, Lille 2, 2013. http://www.theses.fr/2013LIL20006.

Siff, Sarah Brady. "Tough on Dope: Crime and Politics in California's Drug Wars, 1946-1963." The Ohio State University, 2016. http://rave.ohiolink.edu/etdc/view?acc_num=osu1479203861841892.

Riley, Donald J. "Post-conflict justice : issues and approaches." Thesis, (240 KB), 2003. http://library.nps.navy.mil/uhtbin/hyperion-image/03Jun%5FRiley.pdf.

UN rights body adopts resolution on Israel accountability for possible war crimes

G ENEVA (Reuters) - The United Nations Human Rights Council on Friday adopted a resolution calling for Israel to be held accountable for possible war crimes and crimes against humanity committed in the Gaza Strip.

Twenty-eight countries voted in favour, 13 abstained and six voted against the resolution.

(Reporting by Gabrielle Tétrault-Farber; Editing by Matthias Williams)

War Crimes Research Paper

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War Crimes Definition

The most authoritative definition of war crimes was formulated in the London Charter of 8 August 1945, which established the International Military Tribunal at Nuremberg. It was adopted in 1946 by the General Assembly of the United Nations in a unanimous resolution approving of the work of the Nuremberg Tribunal:

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War Crimes: Violations of the laws or customs of law 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 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. ( Trial of the Major War Criminals, vol. 1, p. 11)

War crimes under this definition, which follows the traditional doctrine under international law, have the following elements: (1) they are acts of violence against civilian populations, prisoners of war, or in some cases enemy soldiers in the field; (2) they are committed primarily by military personnel; (3) they are in violation of the laws and customs of war; (4) they are not justified by military necessity; and (5) they often involve weapons or military methods of unusual cruelty or devastation.

In the broadest sense, a war crime is any act of violence by military personnel (or by informal semi-military militia) that exceeds the rules of war. War is by its very nature violent, and military acts in wartime—killing, capture, and destruction—would otherwise be considered criminal under the laws of all civilized societies. But every society suspends the application of its criminal law when dealing with military acts in time of war.

However, whatever immunity is accorded these military acts in war extends only to conduct that conforms to the rules of war (Taylor, pp. 19– 20). Thus, the incidental killing of civilians in a bombing raid as part of a military operation is not murder because it is justified by military necessity. But the deliberate killing of defenseless civilians by infantrymen, as in Son My (otherwise known as My Lai) in Vietnam or by militia groups in Bosnia or Kosovo, remains what it always was: murder, because the immunity ordinarily accorded military operations did not apply since the acts violated the rules of war. In fact, Lieutenant William Calley, Jr., was tried and convicted by an American military court-martial of various acts of premeditated murder as a result of the killings at Son My, under the section of the Uniform Code of Military Justice dealing with murder and manslaughter ( United States v. Calley, 22 U.S.C.M.A. 534, 48 C.M.R. 19 (1973)). He was not charged with a ‘‘war crime’’ as such or tried by a special international tribunal. Rather, he was tried for committing murder by an army court-martial in the same way that a soldier who killed a fellow soldier or a civilian would have been treated for nonmilitary acts committed in that theater of operations.

The narrow definition of war crimes quoted above (excesses by military personnel in the field or atrocities against civilians generally) has been expanded to cover two additional broad categories: (1) crimes against peace, or the ‘‘planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties’’; and (2) crimes against humanity, or ‘‘murder, extermination, enslavement, deportation or other inhuman acts done against any civilian population’’ ( Trial of the Major War Criminals, vol. 1, p. 11).

A more comprehensive definition of war crimes that includes all elements of these offenses is contained in the charter for the International Criminal Court adopted in Rome in the summer of 1998 by the United Nations Diplomatic Conference (U.N. Doc. A/Conf. 183/9, 17 July 1998). The purpose of the Rome conference was to create the International Criminal Court (ICC) as a permanent international judicial body to try war crimes and other international crimes as an alternate to the ad hoc tribunals set up to deal with specific violations of the rules of war in local areas such as Yugoslavia and Rwanda. In the process, the Rome treaty had to define the jurisdiction of the ICC and the defined circumstances under which it would be empowered to act. The definitions of the crimes under its jurisdiction largely follow the Nuremberg model: (a) the crime of genocide; (b) crimes against humanity; (c) war crimes; (d) the crime of aggression (Part 2, Article 5 (1)). However, as noted below, the definitions of these concepts was broadened considerably in the ICC charter.

By the end of 2000, 139 states had signed the Rome treaty containing the broader definitions, although only twenty-seven states had formally ratified it (the treaty needs sixty formal ratifications before it comes into effect). On 31 December 2000, President Bill Clinton signed the treaty on behalf of the United States over objections of both his own Department of Defense and leading members of the U.S. Senate. The senators were concerned that the treaty would apply to nations that did not ratify it and that American soldiers or political leaders might be brought before an international court (without all of the constitutional protections) for actions taken in foreign wars or even for actions taken in their own states (such as a governor who sanctioned the death penalty against minors, mentally retarded prisoners, or against a disproportionate number of a racial or ethnic group).

The broader definition of war crimes generally accepted by the international community includes the following offenses:

Crimes Against Peace

The concept of ‘‘crimes against peace’’ or ‘‘aggression’’ relate only to the initiation of war and not to its later conduct. Such offenses are primarily crimes of the politically responsible leaders of a country. The theory is of comparatively recent origin, although it is related to the notion of the ‘‘just war,’’ described below. The Nuremberg Tribunal had considerable difficulty in determining the origin of the concept of ‘‘crimes against peace’’ in international law. It relied chiefly on the Kellogg-Briand Pact of 1928, which had condemned a ‘‘recourse to war for the solution of international controversies’’ (Article I).

Crimes Against Humanity

The concept of crimes against humanity does not always or necessarily mean a crime committed during a war. If a nation engages in the systematic slaughter of its own inhabitants (such as the systematic oppression by the Nazis of German Jews and Gypsies before war began in 1939, or the Turkish massacre of Armenians in 1915), those responsible would be guilty of ‘‘crimes against humanity’’ even if there were no international hostilities at the same time. The concept of genocide—killing or causing serious injury to members of a distinct national, ethnic, or racial group or inflicting on the group conditions of life calculated to bring about its physical destruction—grew out of the Nuremberg Tribunal’s application of the concept of crimes against humanity. It may be the most typical form of a crime against humanity since a government or state committing such crimes will generally do so against distinct nationalities or ethnic groups, rather than against its own people or against humanity in general. However, crimes against humanity is a broader concept since it covers murder, enslavement, deportation, imprisonment, torture, rape, or other persecution of any identifiable group (political, cultural, gender), and not merely a national or ethnic group covered by the crime of genocide. Thus the ICC charter contains a very broad definition of crimes against humanity, including any ‘‘widespread or systematic attack directed against any civilian population’’ (Article 7(1)). The ICC definition would cover the destruction of the Cambodian population by the Pol Pot regime in the 1970s, for example, and the mass disappearances of political opponents of military governments in Argentina and Chile in the same period, even though such crimes might not fit within the definition of genocide.

The United Nations General Assembly passed a resolution condemning genocide, and the Genocide Convention was drafted and acceded to by many nations, although not by the United States (Article II). If crimes against humanity take place in the midst of a war and are directed against civilian populations of another country, these acts may constitute both war crimes and crimes against humanity. In fact, the Nuremberg Tribunal frequently combined its discussion of ‘‘war crimes and crimes against humanity’’ under a single heading and found various persons guilty of both counts under a single discussion of the evidence.

War Crimes without A Formal War

Part of the problem in defining ‘‘war crimes’’ is that formal declarations of war, which generally preceded hostilities between states in earlier times, no longer occur. Thus there may be some doubt when a ‘‘war’’ as defined by international law is present. In addition, the ‘‘wars’’ of the latter part of the twentieth century were often civil wars (Rwanda, Sudan, Lebanon), guerrilla wars (Colombia, Peru, Nicaragua), and political conflicts (Cambodia, Argentina, Chile), with assistance sometimes given to one group from an outside power (Vietnam, Yugoslavia). The formal treaties and protocols drafted by the major powers were often one step behind in defining the circumstances under which war crimes took place. Thus, the Geneva Conventions of 1949 dealt primarily with conduct during an ‘‘international armed conflict.’’ The conventions contained a Common Article 3, which applied to all four treaties and covered ‘‘an armed conflict not of an international character’’ to which certain, but not all, of the prohibitions applied.

Later efforts to take account of the new types of armed conflicts often left significant gaps. Protocol II to the Geneva Convention proposed in 1977 would extend the protections of the 1949 conventions to victims of ‘‘internal wars,’’ a broader concept than ‘‘an armed conflict not of an international character’’ (Protocols Additional to the Geneva Convention of August 12, 1949 and Relating to the Protection of Victims of International Non-International Armed Conflicts, June 10, 1977, 1125 U.N.T.S 609 (hereinafter Protocol II)). The definition of ‘‘internal wars’’ was as follows: ‘‘It shall apply to all armed conflicts which are not international and which take place in a territory of a high contracting party between its armed forces and dissident armed forces or other organized armed groups, which under responsible command exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations.’’ Therefore, there must be ‘‘dissident armed forces’’ or ‘‘organized armed forces’’ occupying territories in order to satisfy the definition of ‘‘internal war’’ under Protocol II. (The United States has not ratified Protocol II although over 120 states have acceded to it.)

The International Criminal Tribunal for Yugoslavia (ICTY) broadened the predicate for punishing war crimes in its decision in Prosecutor v. Tadic (No. IT-94-1-T (Yugoslavia Tribunal Trial Chamber, August 10, 1995, affd No. IT-941-AR 72)). (Yugoslavia Tribunal, Appeals Chamber, 2 October, 1995, Tadic Appeal on Jurisdiction, reprinted at 35 I.L.M. 32 (1996) and appeal on the merits, 15 July 1999, reprinted in 38 I.L.M. 1518 (1999).) The Appeals Chamber held in the jurisdictional appeal that an armed conflict exists (and therefore the four Geneva Conventions apply) ‘‘when there is resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state’’ (par. 70). Broadening the definition found in the Geneva Conventions and Protocol II, the Appeals Chamber of ICTY held that the technical requirements of an international armed conflict need not be present before the rules contained in those provisions can be applied. The court held that persons engaged in organized armed conflicts either of an international or local nature are bound by ‘‘Customary Rules of International Human Rights,’’ which can be applied by both local, ad hoc, and international courts in dealing with excesses against civilian groups or enemy soldiers.

In its second decision on the merits, the Appeals Chamber held that the Bosnian Serb militias were acting on behalf of the goals ‘‘and shared strategic objects’’ of the Serbian government in Belgrade (par. 153), even if they were not directly under the control of the Serbian military, thus bringing their actions within the prohibitions of the Geneva Conventions relating to ‘‘international armed conflicts.’’

The Rome Charter of the ICC also broadens the definition of crimes against humanity by encompassing any attack upon a civilian population under the following circumstances: ‘‘a course of conduct involving the multiple commission of acts referred to in paragraph 1 [murder, enslavement, deportation, torture, rape, apartheid, disappearances, or other inhumane acts] against any civil population, pursuant to or in furtherance of a State or organizational policy to commit such attack’’ (Article 7(2)(a)).

There are slight differences between crimes against humanity as defined in the Rome Charter and the statutes creating the international criminal tribunals for Yugoslavia (ICTY) (U.N. Doc. S/PV. 3217 (1993)) and Rwanda (ICTR) (U.N. Doc. S/RES/955 (1994)). The Rome Charter requires ‘‘a multiple commission of acts’’ against civilians, but it contains no requirement that the acts be committed in the context of an armed conflict. Nor does the ICTR statute require any such conflict. The ICTY statute does require an armed conflict before it can exercise jurisdiction, and also demands some kind of discriminatory motive on the part of the perpetrator, a requirement that is not found in the Rome Charter. But all three enactments greatly expand the defined circumstances under which international law against crimes of war can be applied.

In February 2001, a panel of the ICTY found that rape in and by itself could constitute a crime against humanity and found three Bosnian Serb soldiers guilty of enslaving and abusing hundreds of Muslim women from the town of Foca, near Sarajevo, during the Bosnian conflict. They were sentenced to twenty-eight, twenty, and twelve years’ imprisonment, respectively ( Prosecutor v. Kunarac ).

Historical Development

Although the notions of crimes against humanity and genocide may be comparatively recent, the concept of war crimes as a restraint on the military is of much older origin. Virtually every recorded civilization placed some limitations on the conduct of its own warfare, and violations of such rules could therefore be considered war crimes. In the Egyptian and Sumerian wars of the second millennium B.C.E., there were rules defining the circumstances under which war might be initiated. In ancient China it was forbidden in wartime to kill wounded enemies or to strike elderly armed opponents. The Chinese philosopher Sun Tzu wrote in The Art of War (400 B.C.E.): ‘‘Treat the captives well and care for them. All the soldiers taken must be cared for with magnanimity and sincerity so that they may be used by us’’ (Friedman, p. 3). Similar restrictions on killing the wounded, ordinary citizens, women, children, or prisoners were expressed in Hindu literature of the fourth century B.C.E., in Babylonian texts, and in the Bible (Deut. 20).

The Greeks and Romans introduced further notions of humane and civilized treatment of noncombatants in war. Plato wrote in his Republic that war among the Hellenes should have as its end ‘‘friendly correction,’’ and not destruction of the enemy. The Romans developed the concept of the ‘‘just war’’ that alone warranted resort to force. Truces, safe-conduct passes, and armistices were respected, and cease-fires were agreed upon so that the dead might be buried. Poisoned weapons were prohibited. This is not to say that the Greeks or Romans did not engage in barbarous acts in time of war. But the development of rules of restraint, although frequently violated, established the principle that limits had to be placed on acts of war—a notion that Christianity was to carry forward over the coming centuries.

In the early Christian era, observance of the Christian principles of pacifism and nonresistance eventually gave way to ferocious efforts to defend Christendom and expand its boundaries. St. Augustine (354–430) and St. Thomas Aquinas (1225–1274) developed the just-war doctrine, arguing that wars by a Christian sovereign to spread and protect the true faith against attack by outside enemies were justified. The early church fathers had insisted that soldiers who killed even in a just war should do penance, and they warned against pillaging and slaughter. Later, ecumenical councils of the church passed various decrees establishing a ‘‘Truce of God,’’ when all fighting was to cease, and tried to arrange cease-fires between Christian princes during the Crusades.

Beginning in the fifteenth century, two other developments contributed to the establishment of rules of war on an international basis: (1) the chivalric code of honor took shape, limiting the weapons and methods that could be used in combat; and (2) merchants insisted that unlimited pillaging and destruction in wartime ought to be restrained. The chivalric code applied across national borders and was founded on natural law, limiting even princes in their capacity as knights and soldiers (Keen, p. 50).

Scholastic teachers, jurists, and theologians reexamined and systematized the laws of war as derived from classical Greek and Roman practice, Christian doctrine, contemporary practice, and chivalric codes. Francisco de Vittoria (1485– 1546), a Spanish professor who lectured on Thomist philosophy in Paris and Salamanca, examined the moral and legal problems of the Spanish conquests against the Native Americans in the New World in his work on the law of war. He concluded that ‘‘it is never right to slay the guiltless, even as an indirect and unintended result, except where there is no other means of carrying on the operations of a just war’’ (p. 179). Other important sixteenth- and seventeenth-century writers on the laws of war were Balthazar Ayola, judge advocate of the Spanish armies in the Netherlands; Francisco Suarez; and Alberico Gentili.

The most systematic and comprehensive work on the laws of war was that of the Netherlander Hugo Grotius (1583–1645), who served in many important positions in the Dutch government, including a term as attorney general. In 1625 he published a three-volume work titled The Law of War and Peace , which brought together classical and medieval thought on the restraints on war and sought to reconcile Christian dogma and the actual practice of contemporary states in wartime. Grotius attempted to discover what the rules of international law were, using the acts of generals and soldiers as the basis for his search. Writing at the beginning of one of the most ferocious and bitter wars of European history, the Thirty Years’ War (1618–1648), Grotius proceeded on the assumption that the experiences and actions of armies in war were not improper deviations from a theological norm. Rather, they were the expressions of a natural order, whose principles he could determine.

Grotius sought to explain what that natural law was. If war does have rules that all states obey (or should obey), then deviation from those rules should become a crime—a war crime, as the twentieth century would call it. Some seventeenth-century Christian princes took Grotius’s rules seriously. Gustavus II Adolphus of Sweden carried a copy of Grotius’s book with him everywhere, established strict rules against attacking hospitals, churches, schools, or the civilians connected with them, and severely punished those of his own soldiers who disobeyed the rules (Wedgwood, pp. 261, 265). Other generals either did not or could not control their men, and mass destructions and pillage took place frequently. In the rare cases when soldiers were punished for such deeds, it was not because they had committed a war crime—which had no meaning at the time—but because they had committed murder or rape under circumstances that the commander could not overlook.

The rise of the nation-state in the eighteenth and nineteenth centuries and the decline of the church’s moral authority led to more concrete efforts to define and codify the laws of war whose violation would constitute a war crime.

The Lieber Code and The Development of International Treaties

In the nineteenth century, the effort to systematize the laws of war and restrain excesses by the military against civilians and prisoners received a major impetus from an American law professor, Francis Lieber (1800–1872), a German-born veteran of the Napoleonic Wars. In the middle of the American Civil War, Lieber suggested that a code of the law and usages of war be prepared that would be used as a guide by military commanders in their treatment of prisoners of war, irregular guerrilla forces, and captured enemy property. In April 1863, Lieber’s code was issued by the Union government under the title ‘‘Instructions for the Government of Armies of the United States in the Field.’’ Many European nations, including Prussia, quickly adopted instructions based on the code.

The European nations had meanwhile begun the process of codifying the laws of war by international treaties binding on signatories in all future conflicts. The first step had been the Declaration of Paris (1856), signed by seven European nations, dealing with the seizure of neutral ships carrying enemy goods. The Red Cross Convention (1864), which specifically covered the treatment of the wounded in armies in the field, was signed by twelve European nations. (The United States acceded to it in 1882.) In 1868, eighteen nations signed and ratified another agreement, the Declaration of St. Petersburg, concerned with ‘‘projectiles . . . charged with fulminating or inflammable substances.’’

A more comprehensive treaty, dealing with all aspects of the conduct of war and based largely on the Lieber Code, was prepared by delegates of fifteen nations who met in Brussels in 1874. However, some European powers that had begun to develop new weapons and that faced the prospect of new wars became cool to the idea, and the Brussels Declaration was never officially adopted. Twenty-five years later (1899), on the initiative of Russia, a new conference was called at The Hague that led to the first of a series of international conventions broadly treating the conduct of war. The conference adopted a series of treaties dealing with treatment of prisoners of war and military authority over hostile territory, and prohibiting (for a period of five years) the use of poison gas, expanding bullets (‘‘dumdums’’), and bombs dropped from balloons.

In 1907, another conference was held at The Hague, from which emerged fourteen separate treaties, eight of them concerned with maritime matters. Agreement was also reached on a convention dealing with the wounded and prisoners of war, and containing detailed regulations for conduct toward civilians in land warfare. The earlier ban against bombing from balloons was extended.

A new conference at The Hague was planned for 1915. By that time World War I had broken out, and the Hague conventions were being given their first practical application. After the war ended, an Allied commission was appointed to determine whether any enemy soldiers should be tried for violating the laws and customs of war. The commission recommended that an international court be established, composed of representatives of the major powers (a plan later followed in the creation of the Nuremberg Tribunal after World War II), which would apply the principles of the Hague conventions. But the peace commissioners decided to have existing military tribunals from the victorious armies act as the trial courts. The German government strenuously objected, insisting that its own courts should conduct the trials. The Allies agreed to let the Reich Supreme Court at Leipzig handle the charges. A group of German soldiers who had mistreated Allied prisoners were found guilty by the Leipzig court, but were given minor sentences. Two U-boat officers were also tried, for taking part in the torpedoing of a troop ship and the shelling of the survivors (the Llandovery Castle case). But five defendants accused of the atrocities against Belgian civilians that had so outraged the world were acquitted.

After World War I, the European nations also returned to the process of codifying the laws of war. In 1925 they prepared a treaty prohibiting the use of bacteriological methods of warfare. In 1929 two detailed conventions were prepared at Geneva dealing with conduct toward the sick and wounded as well as prisoners of war. Both conventions were to be in force during World War II.

The modern industrial powers continued the effort to define war crimes by treaty in Geneva in 1949, after World War II and the Nuremberg trials. Once again, detailed conventions were laid down, in the following four separate agreements.

• Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.
• Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea.
• Convention Relative to the Treatment of Prisoners of War.
• Convention Relative to the Protection of Civilian Persons in Time of War.

After World War II, the United Nations had taken over the major effort to codify the rules of war. It passed the Genocide Convention in 1948; a resolution against nuclear weapons in 1961; and a resolution on human rights, calling for protection of civilian populations in time of war, in 1968. In the early 1970s the United Nations also urged the International Committee of the Red Cross (ICRC) to develop new agreements on rules of war that would take account of colonial and guerrilla wars, as well as new methods of warfare not covered by earlier conventions. The ICRC brought together a group of experts, who in 1977 produced two protocols to the 1949 Geneva Conventions, dealing with colonial wars of liberation, prisoner-of-war status, and protection of civilian populations (Protocols Additional to the Geneva Convention of August 12, 1949 and Relating to the Protection of Victims of International and Non-international Armed Conflicts, June 10, 1977, 1125 U.N.T.S 609). The United States did not ratify the 1977 protocols.

Another conference was held in Geneva in 1980, to consider restrictions on the use of certain conventional weapons. Three additional protocols were prepared in 1981, covering weapons that introduce nondetectable fragments into the human body; mines, booby traps and other devices; and incendiary weapons (United Nations Conference on Prohibitions or Restrictions on Use of Certain Conventional Weapons: Final Act, U.N. Doc., A/CONF. 95/15 of October 27, 1980 reprinted in 19 I.L.M. 1523, 1530).

In December 1997, 122 countries signed the Landmine Treaty (the Oslo Treaty), which grew out of the 1980 Geneva Conference, banning the use, sale, and production of antipersonnel mines, which ravaged many parts of Asia and Africa (Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Antipersonnel Mines and on their Destruction, 36 I.L.M. 1507). The treaty came into force on 1 March 1999, although the United States refused to sign because of objections made by the Department of Defense, which was concerned that it would inhibit its ability to respond to rogue nations who refused to obey or follow the restrictions contained in the treaty.

Efforts to declare the use of nuclear weapons a violation of international law and therefore a war crime have continued for many years. Proponents of such a declaration argue that nuclear weapons by their nature inflict excessive and unnecessary suffering on civilian populations, in violation of the 1907 Hague Convention and the 1949 Geneva conventions (Falk, Meyrowitz, and Sanderson). In fact, in December 1963 a Japanese court did reach such a decision in the famed Shimoda case, in which victims of Hiroshima and Nagasaki sued the Japanese government for damages caused by the dropping of the atomic bombs on those cities. (The Japanese government had waived any claims by its citizens against the United States in the peace treaty of 1951, and thus was sued as a surrogate for the actual perpetrators.)

The Hague and Geneva conventions are a reflection, but not necessarily the source, of the laws of war. International law has evolved out of the customs and practices prevailing among civilized nations, and the rules of war as laid down in the conventions are but one expression of this common heritage. The conventions declare that all nations are bound by basic rules of warfare, whether or not they are signatories to the treaties and whether or not they attempt to withdraw their ratification. Article 63 of the first Geneva Convention of 1949 (relating to wounded and sick in the field) allowed any party to denounce the treaty, but the ‘‘denunciation shall have effect only in respect of the denouncing Power. It shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfill by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.’’ The appeals decision in Tadic also recognized that all nations are bound by ‘‘Customary Rules of International Human Rights,’’ regardless of the technical application of a particular treaty or protocol and regardless of whether a nation adhered to their legal provisions.

Those common principles have not varied in their basic outlines for thousands of years: defenseless civilians should not be attacked, prisoners should not be killed, the wounded should be cared for, and weapons of unnecessary destructiveness should not be used.

War Crimes Trials

As noted above, trials of soldiers who raped civilians, tortured prisoners, or killed the wounded have been rare events until modern times. Victorious armies seldom punished their own men. In the days when payment to soldiers was haphazard, commanders found that permitting excesses and the pillaging of the enemy served as a useful escape valve, and clear rules on what was prohibited in war were not definitively laid down.

With the rise of permanent, professional armies, the necessity for imposing discipline upon soldiers was perceived, and the first international treaties on the rules of war were signed. Punishment for violations of these rules began to be imposed. One of the earliest complete records of a war crimes trial as such involved Major Henry Wirz, the Swiss doctor who was in charge of the Confederate army’s infamous Andersonville prison camp during the Civil War. A Union court-martial headed by Major General Lew Wallace (the author of Ben-Hur ) tried and convicted Wirz of murder and mistreatment of prisoners ‘‘in violation of the laws and customs of war,’’ which had just been defined in the Lieber Code, discussed above. Wirz raised the defense of superior orders, but the court rejected the claim, and he was hanged for his crimes.

The British army tried some of its soldiers for killing prisoners and civilians during the Boer War (commemorated in the 1980 Australian film Breaker Morant ), and the American army held trials in the Philippines to punish atrocities committed by its soldiers during the insurrection of 1899–1902. A limited effort was made to try war criminals after World War 1. But it was left to German courts to try their own soldiers, and the defendants were treated quite leniently or were acquitted, as described above.

The most important group of war crimes trials took place after World War II. The Allied powers issued the ‘‘Moscow Declaration’’ in October 1943, announcing that those accused of war crimes would be ‘‘brought back to the scene of their crimes and judged on the spot by the peoples whom they have outraged.’’ The declaration also specified that the Allies would take action against the ‘‘major criminals whose offenses have no particular geographical localization.’’

The United Nations War Crimes Commission was established in 1943 to gather evidence of war crimes for later use. It was chiefly concerned with the committing by lower-level officials or soldiers of such crimes as mistreatment of prisoners of war, atrocities against civilians, or execution of hostages.

The Allied powers engaged in considerable debate about what to do about the higherechelon leaders. As late as April 1945 the British cabinet voted to shoot the chief Nazi leaders on sight, even if they surrendered, rather than hold elaborate trials. But the Americans and Soviets insisted on an international military tribunal, and the British eventually acceded. The procedures for trying the cases were worked out in London in July and August 1945. An international military tribunal made up of representatives of the four major powers (the United States, Great Britain, the Soviet Union, and France) would try the major political and military leaders of the German government. The charges determined by the London Conference included (1) crimes against peace; (2) war crimes; and (3) crimes against humanity, as defined above.

Twenty-two leading members of the German government were tried at Nuremberg between November 1945 and August 1946. Nineteen were found guilty, and twelve were sentenced to death by hanging, including Hermann Göring, Joachim von Ribbentrop, Hans Frank, Wilhelm Frick, Alfred Jodl, and Martin Bormann, the last tried in absentia.

The specific war crimes of which the Nazi leaders were found guilty included the killing of captured Allied soldiers and prisoners of war, the massacre of hostages in occupied territories, the murder and ill treatment of civilian populations, the deportation of civilians for use as slave labor, and, of course, the systematic killing of the Jewish population of occupied Europe. The tribunal found the defendants guilty of these war crimes not only on the basis of violations of the Hague and Geneva conventions, but also because they violated the customary rules of war between nations. The terms of the Hague and Geneva conventions applied only if all belligerents were parties to them, whereas they had not been explicitly ratified by the Soviet Union and some other countries involved in the war.

The rules of land warfare expressed in the (Hague) convention undoubtedly represented an advance over existing international law at the time of their adoption. But the convention expressly stated that it was an attempt ‘‘to revise the general laws and customs of war’’ which it thus recognized to be then existing; but by 1939 these rules laid down in the convention were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war. ( Trial of the Major War Criminals, vol. 1, pp. 253–254)

The formation of the International Military Tribunal was an important step in the punishment of war crimes. First, it showed that the Hague and Geneva conventions were an embodiment of international law that could be enforced on an international level. Prior war crimes trials had been held by individual nations applying their own law to their own soldiers or those of the enemy.

Second, persons were put on trial for violating international law even though their own domestic law permitted those acts. As explained by Telford Taylor, chief counsel for the prosecution at Nuremberg, ‘‘individuals may be held criminally liable under international law, even though their conduct was valid under, or even required by, domestic law’’ (Taylor, p. 82).

Third, the Nuremberg trials expanded individual liability for war crimes far beyond the acts of individual soldiers committing atrocities. Contrary to popular belief, the Nuremberg tribunal was not the first court to declare that superior orders was not a defense to a war crime: that defense had been rejected in the trial of Major Wirz and in the Llandovery Castle case decided by the Leipzig court in 1921. Indeed, the domestic law of Great Britain, the United States, and Prussia had long since held that a person does not escape liability for a crime by insisting that he was following orders. What the Nuremberg tribunal did do was to apply the converse of the superiororders rule: namely, that the persons giving the orders, up to and including the political leaders of the nations, could also be guilty of war crimes. Thus, among those found guilty were German generals who had ordered the killing of prisoners of war, the civil administrators of occupied territories, and the economic ministers who had exploited slave labor. In addition to the trial of the major criminals, the Allies decided that lower-level German officials should be tried by national or occupation courts of each occupying power.

After the major trials in Nuremberg, American military tribunals held 809 trials in both Germany and Japan, involving 1,600 defendants; the British held 524 trials involving 937; and the French tried 2,107 individuals ( Trials of War Criminals ; United Nations, War Crimes Commission). It is estimated that ten thousand persons were tried for war crimes in Europe and the Far East between 1945 and 1950.

In Europe, the individuals tried included soldiers who killed prisoners, civilians, and hostages, officers who did not properly restrain their subordinates, doctors who conducted illegal medical experiments on prisoners, judges who enforced racial laws against Jews and other nationalities, industrialists who exploited slave labor, and even the manufacturers of the Zyklon B gas that was used to kill Jews and Allied nationals in concentration camps.

Similar trials took place in the Far East. An international military tribunal for the Far East tried the leading Japanese political leaders and generals on the same charges as those heard in Nuremberg. A number of the defendants— particularly some of the generals—were found guilty of committing atrocities against civilians in China, Borneo, and the Philippines, of mistreating and starving prisoners of war, or of disregarding their duty to protect civilians and prisoners under their jurisdiction.

Other trials were held by military commissions in occupied territories. The most famous was the trial of General Tomoyuki Yamashita, the Japanese commander of the Philippines in 1944 and 1945. Yamashita was found guilty of ‘‘unlawfully disregard[ing] and fail[ing] to discharge his duty as commander in chief to control the operations of the members of his command, permitting them to commit brutal atrocities’’ ( In re Yamashita , 327 U.S. 1, 13–14 (1946)). It appeared that Yamashita had poor communication with his troops and little opportunity to control them after the American invasion of Luzon. Nevertheless, he was found guilty of war crimes based on the atrocities committed by his troops. His lawyers appealed to the U.S. Supreme Court, which refused to intervene, over famous dissents by Justices Frank Murphy and Wiley Rutledge.

One of the most significant war crimes trial after the 1940s was that of Adolf Eichmann, kidnapped from Argentina by Israeli agents and tried in Jerusalem in 1961. There was no question that Eichmann was personally involved in— and therefore responsible for—the killing of millions of Jews from occupied countries. The only legal issue of any significance was whether Israel had jurisdiction to try him. Since he was charged with crimes against the Jewish people, the Israeli court had no difficulty in finding that it could act. ‘‘The connection between the State of Israel and the Jewish people needs no explanation’’ (Friedman, p. 1633).

The issue of war crimes became more significant for Americans during the Vietnam War. The best-known episode occurred when an American military company invaded the small hamlet of Son My (My Lai) in South Vietnam in March 1968 and killed virtually every inhabitant, including women, children, and old men, a total of about four hundred persons. The victims were defenseless, made no effort to fight the Americans, and were not hostile. According to testimony at the court-martial of Lieutenant William Calley, Jr., held in March 1971, Calley had ordered his men to kill everyone and had personally killed a number of the inhabitants, including a two-year-old child. He was found guilty of the premeditated murder of twenty-two Vietnamese civilians and sentenced to life imprisonment. The sentence was reduced to twenty years’ imprisonment by the commanding general of Fort Benning, and was further reduced to ten years by the secretary of the army. Calley was paroled after serving one-third of the sentence ( Calley v. Callaway, 519 F. 2d 184 (5th Cir. 1975)).

Three other persons were tried for their involvement in the Son My episode, but all were acquitted of the charges: Captain Ernest Medina, the company commander who denied having given Calley orders to kill, and two sergeants, Charles Hutto and David Mitchell. Thus, only Calley was found guilty of any charges. One other American soldier, marine private Michael Schwartz, was found guilty of killing twelve Vietnamese villagers in a separate incident at Danang.

There was considerable debate about the legality under international law of American bombing of North Vietnamese cities, but most experts believed that it was no different or worse than Allied bombings during World War II. American treatment of Vietcong prisoners raised more serious problems, and one American lieutenant, James Duffy, admitted during his courtmartial that he had ordered a prisoner to be killed. He was acquitted after other officers testified that they too had been ordered to take no prisoners in combat.

In the 1990s, war crimes trials were held in both Yugoslavia and Rwanda, following widespread atrocities against civilian populations in both counties. The U.N. Security Counsel established special tribunals with defined jurisdiction to try those responsible for mass killings and other offenses, including deportation and rape. The tribunals were known as the International Criminal Tribunal for Yugoslavia (ICTY) (U.N. Doc. S/PV. 3217 (1993)) and the International Criminal Tribunal for Rwanda (ICTR) (U.N. Doc. S/RES/955 (1994)). Over one hundred individuals were indicted by the ICTY, including the former president of Serbia, Slobodan Milosevic, for his actions in ordering the persecution of Albanian civilians in Kosovo, including the murder and forced removal of many Kosovo Albanian citizens. The trials produced important new rulings on international crimes, including the decision that rape is a crime against humanity ( Prosecutor v. Kunaric ) and that a crime against humanity can be committed in purely internal conflicts by local militias who are acting for the goals of a foreign power, even if not under their direction ( Prosecutor v. Tadic ).

By the end of 2000, the ICTR had indicted close to fifty individuals for genocide and crimes against humanity following the massacre of hundreds of thousands of Tutsis by the Hutudominated government in 1994. Half of the Rwanda cabinet in power at the time, including the former Prime Minister, Jean Kambanda, were indicted for genocide. (A much smaller number of Hutu noncombatants were killed by avenging Tutsis, and Louise Arbour, the former chief prosecutor of the ICTR urged that evenhanded justice required their indictment as well.)

Defining and punishing war crimes has remained an anomalous undertaking. Nations encourage soldiers to kill in war, but try to limit their methods and targets. We allow depersonalized mass bombings of cities, which can kill thousands of defenseless civilians, but we punish individual acts of soldiers who actually confront their victims, and we stockpile weapons far worse than the poisoned arrows prohibited in Roman times. With the increase of ferocious wars of liberation, having no distinct battle lines, and with the growing number of guerrilla armies who fight without uniforms or insignia, the formal rules of the Hague and Geneva conventions may seem outdated. But the need for effective and principled control over atrocities and excesses in armed conflicts of any kind continues.

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