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War Crimes Under International Law

James Catano - 9/2/2006

Article written in reference to the classification of war crimes, genocide, and crimes against humanity, as well as the necessity of such legal categorization and the limitations of domestic law related to such egregious violations.

War crimes, crimes against humanity, and genocide represent three separate and distinct legal classifications within international law. Collectively, as well as individually, the offenses are of global concern and demand international attention. Limitations of domestic law and the inherent deficiencies of national legal institutions pertaining to such egregious acts, necessitate their classification as international crimes. Sovereign immunity, deliberation regarding universal jurisdiction, and worldwide inaction and indifference foster further violations of basic human rights. War criminals and violators of genocide and humanity remain hostis humani generis, and therefore international action, when necessary, must be implemented in order to (i) bring criminals to justice, (ii) establish the presence of consequences, and (iii) prevent the occurrence of further atrocities.

Violence related to war crimes, crimes against humanity, and genocide remain the gravest conceivable crimes, and as such, remain a global concern. According to the Rome Statute, genocide incorporates acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” A crime against humanity consists of an act “committed as part of a widespread or systematic attack directed against a civilian population,” and includes murder, enslavement, or other inhumane acts. Whereas war crimes are comprised of “violations of the laws or customs of war, [s]uch violations shall include, but are not limited to murder, ill-treatment … wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.” As evidenced, various acts, such as murder, remain mutually inclusive throughout the crimes, yet the brutal acts maintain individual contexts.

Official acknowledgement of the reality of egregious acts functions as a deterrent for future violations. Although significant debate surrounds the topic, the implementation of international courts and tribunals and the classification of these acts as crimes notify potential violators that consequences exist and processes are being developed and applied in order to bring these criminals to justice. Such categorization of acts and the organization of courts and tribunals remain necessary in order to effectively punish perpetrators and successfully prevent future crimes. As there remains a particular necessity for international action regarding heinous crimes, and in order to ensure prosecution of guilty parties, awareness, detection, arrest, extradition, and trial remain critical elements of successful international cooperation.

Despite worldwide condemnation of war crimes, crimes against humanity, and genocide, inaction, indifference, and inability hinder international and national efforts to stem such egregious acts. Regrettably, the limitations and inherent weaknesses of domestic law and legal institutions preclude the prosecution of criminals accused of heinous crimes. Firstly, the doctrine of sovereign immunity, or rex non protest peccare, encompass the principle that the government cannot commit a legal wrong and therefore remains immune from prosecution. Additionally, domestic statutory limitations, which essentially impose time constraints on investigations and prosecution, further increase legal impediments to justice. Moreover, domestic laws, courts systems, and security apparatuses in developing countries often remain unprepared, unwilling, and unable to prosecute such trials which frequently include lengthy hearings of uncertain durations. Even the United States, arguably maintaining the most developed independent and democratic judicial system, upholds limitations in its own domestic laws which would preclude a citizen or entity from seeking redress in the event that the President or the armed forces committed genocide, war crimes, or crimes against humanity in actions taken on behalf of the United States. The 'case or controversy' and standing requirements of the Constitution severely limit the degree to which those in power can be held responsible for these types of crimes, further evidenced by sovereign immunity.

Limitations and disadvantages of domestically prosecuting violators, of acts such as war crimes necessitate the involvement of the international community. However, restrictions apply in the international sphere as well. Despite obvious reasons of personal bias, resentment, or prejudice in national courts, in conjunction with previously mentioned legal limitations in domestic law, nations remain hesitant to become involved in a state’s domestic matters as Article 2.7 of the Charter of the United Nations, prohibits Members from participating in domestic matters pursuant to the principle of national sovereignty. Additionally, the concept of universal jurisdiction, in which states claim jurisdiction in cases wherein the crime committed occurred outside the prosecuting state’s legal boundaries, remains controversial throughout the international system. Although risks, and questions of standing, remain clearly evident in universal jurisdiction and international involvement in domestic matters, cases which evidence either (i) war crimes, (ii) crimes against humanity, or (iii) genocide, affect the international community and therefore become an international concern and provide standing for external involvement.

War crimes, crimes against humanity, and genocide each comprise a separate legal classification, yet each crime remains alike. Various egregious offenses fall within the bounds of all three categories, all of which involve violations of international law. Legal classification and enactment of specified regulations regarding such crimes exhibit requisite efforts of the international community to deter future acts. Although not always immediately effective, legal conventions and applications communicate potential consequences for parties associated with heinous crimes, which remained absent previously. As such crimes are of international concern, the inability or unwillingness of domestic courts to prosecute accused parties necessitates the, legitimate and justified, involvement of the international community.