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War Crimes

11 important questions on War Crimes

What were the requirements for war crimes to fall within the jurisdiction of the ICTY (according to the Tadic case)?

1. The violations must infringe a rule of IHL;
2. That rule must be found in customary law or applicable treaty law;
3. The violation must be 'serious', in that the rule protect important values and the breach involves grave consequences for the victim;
4. The violation must entail individual criminal responsibility.

What is the difference between war crimes and IHL?

IHL is addressed to governments and other parties to a conflict. A violation of IHL can culminate in compensation or other satisfaction.

War crimes law is addressed to individuals and sets out offenses amounting to the most serious crimes of concern to the international community as a whole. A violation of the law on war crimes can constitute imprisonment.

First of all, IHL did not apply to internal conflicts. Later on, a legal evolution became necessary because of four reasons. What are those four reasons?

1. Internal conflicts had increased in magnitude and duration.
2. Internal conflict became more prevalent than international armed conflicts, making change necessary if war crimes law was to have relevance for victims of conflict.
3. The increasing interdependence of States mean that internal conflicts had greater impacts on surrounding states.
4. The increased prioritization of human rights and human security means that States were more willing to insist in extending protection even in contexts previously considered an "internal affair"

What was defined in the Tadic decision concerning war crimes in relation to international armed conflicts and non-international armed conflicts?

The ICTY Appeals Chamber concluded that the dichotomy (tweedeling) became vague and that some war crimes provisions also became applicable in internal armed conflicts.

What is the essential element for war crimes?

The nexus with armed conflict.

What does the concept of armed conflict entail?

- the application of force between armed forces;
but also:
- an invasion that meets no resistance
- aerial bombing
- unauthorized border crossing by armed forces.

The state of an armed conflict also applies during occupation, that is to say when territory is placed under the authority of a hostile army.

According to tribunal jurisprudence, when does an armed conflict stop?

- when a general conclusion of peace is reached;
- or, in the case of an internal armed conflict, when a peaceful settlement is achieved.

Do the rules and fundamental principles of IHL apply to UN Forces?

Yes. The law of armed conflict applies to the operations of UN forces.

If UN forces intervene with a State's consent in order to support is, the conflict may remain internal (as there is no clash between states).
If UN forces apply significant force against a State's forces, the conflict would seem to be international.

What is meant by the requirement that the "factual circumstances was associated with armed conflict"? (elements of crime, art 8 under c)

The conduct must be closely related to the conflict. Not all criminal activity on a territory experiencing armed conflict amounts to a war crime (for example: if a man kills his neighbor out of jealousy and this happens during an armed conflict, that is not a war crime).

What is the cardinal principle of IHL?

The Principle of Distinction: belligerents are required to distinguish between military objectives and civilian population and objectives. They may only direct their operations against military objectives.

What does the principle of proportionality in IHL entail?

Even when an attack is directed against a military objective, the anticipated incidental civilian damage must not be disproportionate to the anticipated military advantage.

The question on the page originate from the summary of the following study material:

Lecture 4

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War Crimes

11 important questions on War Crimes

What were the requirements for war crimes to fall within the jurisdiction of the ICTY (according to the Tadic case)?

What is the difference between war crimes and IHL?

First of all, IHL did not apply to internal conflicts. Later on, a legal evolution became necessary because of four reasons. What are those four reasons?

What was defined in the Tadic decision concerning war crimes in relation to international armed conflicts and non-international armed conflicts?

What is the essential element for war crimes?

What does the concept of armed conflict entail?

According to tribunal jurisprudence, when does an armed conflict stop?

Do the rules and fundamental principles of IHL apply to UN Forces?

What is meant by the requirement that the "factual circumstances was associated with armed conflict"? (elements of crime, art 8 under c)

What is the cardinal principle of IHL?

What does the principle of proportionality in IHL entail?

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