War crimes are serious violations by members of a belligerent state against the rules of international law applicable in international or non-international armed conflicts , the criminality of which results directly from international law. War crimes are among the core crimes of international criminal law and are subject to the principle of universal law .
The term “war crimes” is used inconsistently and sometimes in contradictions in common parlance, as in (older) international agreements. In some cases, any criminal act occurring in the course of a war is meant very generally. Occasionally, "war crimes" is used as a collective term for crimes under international law in general. In contrast to this legally imprecise use of the term, the international law terminology is narrower and has clear criteria for delimitation.
International law term
There is no conclusive definition of the term war crime under international law. According to the current state of customary international law , war crimes are selected and serious violations of the rules of international law applicable in international or non-international armed conflicts. On the one hand, war crimes can therefore also be committed if the armed conflict remains below the threshold of war in the narrower sense. On the other hand, war crimes can also be committed in non-international armed conflicts. The distinction between international and non-international armed conflicts is, however, important for the question of which offenses in a conflict are punishable as war crimes (see section Criminal war crimes ).
The rules of international law applicable in armed conflicts, which are collectively referred to as international humanitarian law , include: a. the Hague Land Warfare Regulations (1907) , the Geneva Conventions (1949) and their two additional protocols from 1977. The rules anchored there are initially binding for those parties involved in an armed conflict who are also party to these international agreements. The rules of international law applicable in armed conflicts also include the principles and rules recognized as customary international law that are generally applicable to armed conflicts. The International Committee of the Red Cross has, based on the conclusions of the study, "Customary International Humanitarian Law: Volume 1, Rules" one - published list of customary rules of international humanitarian law, which is also present in a German translation - not undisputed in detail. If an international agreement reflects a rule of customary international law, this rule is binding for all parties to the conflict, even if one party is not a party to the corresponding agreement (see also: all-participation clause ).
Not every violation of the rules of armed conflict also constitutes a war crime. According to Rule 156 of the list of customary rules of international humanitarian law, only "serious violations of international humanitarian law" constitute war crimes. Accordingly, for example, Geneva Convention I ("Geneva Convention of 12 August 1949 to improve the lot of the wounded and sick of the armed forces in the field ”) in Article 49 paragraph 1 stipulates that the contracting parties
"To establish appropriate penal provisions for those persons who (...) commit serious violations of this agreement."
Crimes that are only committed on the occasion of an armed conflict without being functionally related to this conflict do not constitute war crimes. War crimes must also be distinguished from other crimes that can also be classified under international criminal law , namely genocide , crimes against humanity , which, in contrast to war crimes, can also be committed outside the context of an armed conflict. The initiation of acts of war itself is not subject to war crimes, but is covered by the crime of aggression under international criminal law.
According to the current state of international law, war crimes can only be committed by natural persons, not by legal persons. This means that neither organizations nor states can be held criminally responsible for war crimes before international tribunals. Several international criminal courts have repeatedly stated that war crimes can be committed not only by combatants (members of the state armed forces) but also by civilians.
War crimes punishable by international law
The most comprehensive source of law with regard to the offenses punishable as war crimes under international criminal law today is the Rome Statute of the International Criminal Court . In Art. 5, this lists genocide , crimes against humanity , the crime of aggression and war crimes as punishable crimes . The latter is defined in Art. 8 (2) as "serious violations of the Geneva Conventions of August 12, 1949 " and "other serious violations of the (...) applicable laws and customs in international armed conflict", including:
- "Intentional homicide;
- Torture or inhuman treatment including biological testing ;
- deliberately causing great suffering or serious impairment of physical integrity or health;
- Large-scale destruction and appropriation of property that is not justified by military necessity and that is illegal and arbitrary;
- Forcing a prisoner of war or another protected person to serve in the armed forces of an enemy power;
- intentional deprivation of the right of a prisoner of war or any other protected person to an impartial due process;
- unlawful eviction or transfer or unlawful detention;
- Hostage taking ; "
- “Deliberate attacks on the civilian population as such;
- deliberate attacks on civilian objects;
- deliberately launching an attack knowing that it will also cause loss of life, wounding of civilians, damage to civilian objects (...) which are clearly disproportionate to the concrete and immediate military advantage expected overall;
- the attack on undefended cities, villages, dwellings or buildings that are non-military targets (...);
- the killing or wounding of a combatant who reaches out or is defenseless (...);
- the looting of a city or settlement (…);
- the use of poison or poisoned weapons ;
- the use of asphyxiating, toxic or similar gases (...);
- the use of weapons, projectiles, materials and methods of warfare that are likely to cause unnecessary injury or suffering (...);
- Rape , sexual slavery , coercion into prostitution (...);
- the use of the presence of a civilian or other protected person to combat operations of certain points, areas or military forces keep;
- the willful starvation of civilians (...). "
According to Article 8, Paragraph 1 of the Rome Statute, this applies in particular to acts "if they are committed as part of a plan or a policy or as part of the commission of such crimes on a large scale."
Since international humanitarian law is only fully applicable to international armed conflicts, Article 8 Paragraph 2 c) and e) of the Roman status determine the offenses to be punished as war crimes in the event of a non-international armed conflict.
Development up to the First World War
The idea of individual criminal responsibility for violations of the rules and customs of warfare was still alien to the first international conventions for the codification of rules of international martial law . The principle of state immunity was predominant , in the Anglo-American legal system in particular in the form of the Act of State doctrine . The exercise of sovereign power by state authority , including the military , was attributed to the state as such and was thus beyond the jurisdiction of another state. Since there was no overriding jurisdiction between the equal states ( Par in parem non habet imperium ), the question of sanctions in the event of violations of the rules of international martial law was excluded. Only the Hague Agreement on the Laws and Customs of War on Land of October 18, 1907 contained a sanction in Article 3:
“The war party, which should violate the provisions of the specified order, is obliged to pay damages if necessary. She is responsible for all acts committed by those belonging to her armed power. "
At the same time, there was no individual criminal responsibility for natural persons, but only an obligation of the signatory states as classic subjects of international law.
Development after the First World War / interwar period
After the end of the First World War , the Versailles Treaty contained “criminal provisions” in Articles 227-230. a. the Allies would publicly accuse Kaiser Wilhelm II of "serious violation of international moral law and the sanctity of the treaties". However, there was no war crimes trial after the extradition of Kaiser Wilhelm II, demanded by the Allies on January 16, 1920, was rejected by the Dutch government under Queen Wilhelmina on January 22, 1920 .
According to Art. 228 of the Versailles Treaty, the Allies could bring persons to their military courts “for a violation of the laws and customs of war” and demand their extradition. On February 3, 1920, representatives of the Allies sent the German Reich government an extradition list with 895 names or persons designated with their rank or service position. However, on February 17, 1920, the Allies agreed in a note handed over to the Reich government to initiate criminal proceedings before the Reich Court in Leipzig against all persons whose extradition was initially intended. Despite the provisional waiver of extradition, the Allies reserved the right to check whether the legal proceedings did not amount to evading the guilty party from judicial punishment. The then initiated processes before the Reichsgericht in Leipzig remained unsatisfactory in terms of content and results for the further development of an understanding of war crimes under international law. The few convictions were based on the military penal law in force at the time (Military Penal Code for the German Reich of June 20, 1872) and - in addition - the civil penal code. Criminal sanctions that were derived independently from international martial law in the event of serious violations of the laws and customs of warfare were not taken into account in these processes.
The international law of war developed in the period between the two world wars ( Geneva Protocol on the Prohibition of the Use of Asphyxiating, Poisonous or Similar Gases and of Bacteriological Agents in War of June 17, 1925 , Agreement on the Treatment of Prisoners of War of 1929), however, even these international agreements did not contain a legal definition of "war crimes" or even a legal basis for their subsequent prosecution.
Development as a result of the Second World War
The classic definition of war crimes can be found in the London Four Power Agreement of August 8, 1945, which established the Charter of the International Military Tribunal ( London Statute ) as an integral part of this agreement , i.e. the legal basis and procedural rules for the Nuremberg Trials . In Article 6 b) of this Statute, the concept of war crime is defined as follows:
"War crimes: namely violations of martial law or customs. Such injuries include, but are not limited to, the murder, ill-treatment, or abduction of civilians either from or in an occupied territory for forced labor or for any other purpose; Murder or mistreatment of prisoners of war or persons on the high seas; Killing of hostages; Robbery of public or private property; Willful destruction of cities, markets and villages or any devastation that is not justified by military necessity. "
The Nuremberg Trials carried out on the basis of the London Statute and their successor processes are considered to be a signpost and breakthrough for international law (cf. history of international criminal law and the legal historical significance of the Nuremberg trials ). The trials before the International Military Tribunal for the Far East were based on similar legal principles as the Nuremberg trials. On December 11, 1946, the UN General Assembly confirmed the legal principles contained in the statute of the Nuremberg Court of Justice and in the judgment of the Court of Justice as "recognized principles of international law". The drafting of these principles compiled by the UN International Law Commission in 1950 are considered the Nuremberg Principles .
The Geneva Conventions of 1949 were signed on August 12, 1949, under the influence of war crimes in World War II and in order to adapt the existing regulations to the experiences of the war . In contrast to previous international agreements, in the 1949 agreements the contracting parties undertook "to take all necessary legislative measures to establish appropriate penal provisions for those persons who (...) commit serious violations of the (...) agreement (...)".
There were no further international war crimes trials after the Second World War, also as a result of the Cold War, despite many, sometimes cruel, conflicts (see for example war crimes in the Korean War , war crimes in the Vietnam War , Iraq-Iran war ). Likewise, the codification of an international criminal code that the UN was considering after the Second World War was not implemented.
Under the impression of the Yugoslav wars beginning from 1991 and the reports of "mass killings, the massive, organized and systematic internment and rape of women and the continuation of the practice of 'ethnic cleansing" "in this conflict, resolution 827 of the United Nations Security Council of May 25, 1993 decided to set up an international court for grave violations of humanitarian law, the International Criminal Tribunal for the Former Yugoslavia (ICTY) , again and for the first time through the United Nations .
United Nations Security Council Resolution 955 of November 8, 1994 established the International Criminal Tribunal for Rwanda to prosecute genocide and other serious violations of international humanitarian law in Rwanda.
The previous criminal courts were each set up as ad hoc criminal courts either by the victorious states or by resolution of the Security Council. This changed with the International Criminal Court (ICC or ICC) based in The Hague, which was created by an international treaty, the Rome Statute of the International Criminal Court . At the same time, the crimes of genocide, crimes against humanity, war crimes and the crime of aggression under international law were comprehensively codified with the Rome Statute. Since the Rome Statute came into force on July 1, 2002, war crimes can be prosecuted by the International Criminal Court. However, a number of states, including China, India, Israel, Pakistan, Russia and the USA with nuclear weapons, have not yet ratified the statute (as of February 2014). Three of the five permanent members of the UN Security Council - the People's Republic of China, Russia and the USA - have not yet ratified the statute .
Implementation in national law
The Federal Republic of Germany has fulfilled its obligation under the Rome Statute and other international agreements to create national criminal law provisions for offenses under international criminal law with the International Criminal Code (VStGB). War crimes are standardized as criminal offenses in §§ 8 - 12 VStGB. The prosecution responsibility lies with the Federal Prosecutor General at the Federal Court of Justice , investigations are carried out by the Central Office for Combating War Crimes and Other Criminal Offenses according to the International Criminal Code (ZBKV) of the Federal Criminal Police Office .
The Federal Supply Act pensions for soldiers of the former Wehrmacht were deleted (on the initiative of Volker Beck ) for everyone who "violated the principles of humanity or the rule of law during the rule of National Socialism".
As part of the implementation of the Rome Statute in 2010, Switzerland included war crimes as an independent criminal offense in Articles 264b et seq. Of the Swiss Criminal Code .
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