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Who decides? -

War crimes are determined by international customary laws and treaties, though there is no single, globally accepted treaty that lists all war crimes. Instead, a series of international statutes and conventions have developed over time to identify the grave violations related to armed conflict.

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An early attempt: the Lieber Code -

The first systematic attempt to define war crimes was the Instructions for the Government of Armies of the United States in the Field— known as the “Lieber Code” after its main author, Francis Lieber—which US President Abraham Lincoln issued during the American Civil War. It listed things like forcing enemy’s civilians into service for the victorious government and “wanton violence committed against persons in the invaded country” as war crimes, which carried the penalty of death.

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The concept really took shape after WWI -

Immediately after World War I, the victorious Allied powers convened a special Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, which recommended that war crime trials be conducted in the victors’ national courts and, when appropriate, before an inter-Allied tribunal—marking the first significant international court ideation.

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Aiming for big names, but largely missing -

The Allies notably went for heads of state (including Germany’s Kaiser William II), who traditionally enjoyed immunity, and submitted a list of about 900 suspected war criminals to Germany, though Germany was predictably reluctant to turn them over. William II took refuge in the Netherlands and was never tried, and most other suspected criminals also avoided prosecution.

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Next major attempt came after WWII -

Throughout the Second World War, the Allies had cited war crimes committed by Hitler’s Nazi regime as well as the Japanese government, and at the war’s conclusion representatives of the US, UK, Soviet Union, and provisional government of France signed the London Agreement, which provided for an international military tribunal to try major Axis war criminals and ultimately set down the laws and procedures by which the famed Nuremberg trials were to be conducted.

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Three categories of crime -

The Nuremberg Charter listed three categories of war crimes: first was crimes against peace, which involved the preparation and initiation of a war of aggression. Second was "conventional" war crimes, which included murder, ill treatment, and deportation. Third was crimes against humanity, which included political, racial, and religious persecution of civilians—commonly called genocide.

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It was much more effective -

The International Military Tribunal in Nuremberg, Germany, tried 22 Nazi leaders and all but three of the defendants were convicted; 12 were sentenced to death. Japanese defendants accused of war crimes were tried by the Tokyo Charter, and all 25 defendants were convicted, seven of whom were sentenced to hang. These two trials cemented the idea that nations could set up a special court to uphold international law.

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Criticism -

The war crimes trials were criticized as mere "victor’s justice" because only individuals from defeated countries were prosecuted, and the defendants were charged with acts that allegedly hadn’t been criminal when committed. However, the Nuremberg tribunal cited the Kellogg-Briand Pact (1928), the multilateral agreement which formally outlawed war and made the initiation of war a punishable crime.

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The Geneva Conventions followed -

After the Nuremberg and Tokyo trials, numerous international treaties and the Geneva Conventions attempted to create a comprehensive definition of war crimes, which notably focused on the treatment of civilians, the wounded and sick, and prisoners of war. The work of the Geneva Conventions still form a significant basis for how war crimes are determined today.

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Important developments with Yugoslavia and Rwanda -

The war crimes tribunals of Yugoslavia (1993) and Rwanda (1994) played a role in further defining charges of war crimes, which included r a p e, murder, torture, deportation, enslavement, and genocide. Notably, neither tribunals sat within the country of conflict, and they could not impose capital punishment anymore. The tribunals were also among the first international bodies to formally recognize violence as a war crime.

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Creating the International Criminal Court (ICC) -

The idea to establish a permanent international criminal court was brought forth in 1998 in Rome, and 120 countries eventually adopted a governing statute for the ICC, which was established in 2002 in The Hague. The statute provided the ICC with jurisdiction for genocide, war crimes, and crimes against humanity, in cases where national courts fail to act. Notably, three of the permanent members of the UN Security Council (China, the US, and Russia) have not approved the statute.

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So, what constitutes war crimes today? -

Ever since the Geneva Conventions, the most serious war crimes involve deliberately attacking civilians and the infrastructure vital to their survival. The Rome Statute of the ICC has an extensive list of war crimes that are "grave breaches" of the Geneva Conventions, "namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention."

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i. Wilful killing -

Within this broad category, the Rome Statute elaborates to include intentionally directing attacks against the civilian population. It also includes genocide, which is defined by the Geneva Convention as killing, causing harm (physically or mentally), imposing measures to prevent births, and forcibly transferring children with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.

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ii. Torture or inhuman treatment -

This includes things like conducting biological experiments or mutilations on civilians and torturing prisoners of war. It also includes "committing sexual slavery, enforced prostitution, forced pregnancy or sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions."

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iii. Wilfully causing great suffering, or serious injury to body or health -

This includes the use of certain weapons, since some weapons are banned because of the indiscriminate or appalling suffering they cause, like anti-personnel landmines, poison, asphyxiating gases, and chemical or biological weapons.

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iv. Extensive destruction and appropriation of property -

This involves destroying infrastructure like homes and intentionally directing attacks against personnel, installations, or vehicles involved in a humanitarian assistance or peacekeeping mission, including things like hospitals. Additionally, attacking or bombarding towns, dwellings, or buildings that are undefended would be considered a war crime. The statute clarifies that the destruction and appropriation crosses the line when it is "not justified by military necessity and carried out unlawfully and wantonly."

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v. Compelling a protected person to serve in the forces of a hostile Power -

This means that if a country overpowers another, it cannot force the defeated nation's people to "take part in the operations of war directed against their own country."  

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vi. Wilfully depriving protected persons of the rights of trial -

It is in the right of prisoners of war to get a fair and regular trial. Additionally, killing or wounding a combatant who surrendered is off limits.

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vii. Unlawful deportation or transfer or unlawful confinement -

Separating children from their families, or forcibly locking civilians up or deporting them is viewed as a war crime. It also goes the other way to include "the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies."

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viii. Taking of hostages -

As the statute says, "Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations" as well as "committing outrages upon personal dignity, in particular humiliating and degrading treatment" is viewed as a punishable offense.

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The catch -

Not every violation of these rules is considered a war crime, but rather only "grave breaches," as Tom Dannenbaum, assistant professor of international law at Tufts University, told USA Today. Plus, crimes against humanity, such as murder, torture, enslavement, mass persecution of a group, or any other offenses committed as part of a systematic attack against any civilian population, are only technically considered war crimes during an armed conflict.

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The International Court of Justice (ICJ) -

Whereas the ICC investigates and prosecutes individual war criminals who are not before the courts of individual states, the ICJ rules on disputes between states, but cannot prosecute individuals. It’s the judicial arm of the United Nations and handles disputes between UN member states and breaches of international law.

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There are limitations -

But there are practical limitations to the ICC’s power, first being that it relies on individual states to arrest suspects. 

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There are limitations -

The effectiveness of the ICC and the way international law moves from theory and treaties to real-life practice all depend on ever-shifting politics and diplomacy. 

Sources: (BBC) (Britannica) (USA Today) (Rome Statute)

See also: What happened to these war criminals?

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