In light of the recent media reports of war crimes committed by the Russian military in Ukraine, we present an analysis by Dr hab. Marcin Marcinko from the JU Chair in International Public Law, in which he describes the legal classification of crimes according to the international law: a set of international legal norms that form the basis of an individual’s criminal responsibility before courts and international tribunals.
Due to the setting up of military tribunals in Nuremberg and Tokyo after the Second World War in order to pass judgement on war criminals from the Axis powers, the latter half of the 20th century saw a great development of international criminal law. According to the Nuremberg principles, every individual that commits an international crime must bear responsibility for it
Currently, there are four main categories of international crime: war crimes, crimes against humanity, genocide and crimes of aggression. These offenses are so grave that they are not subject to expiration: individuals accused of them may be tried in court even decades later.
War crimes were the first international crimes to be defined. They include serious breaches of the international humanitarian law (also known as the law of armed conflict) which regulates the means of warfare available to the participants of the conflict. There are many actions that can be classified as war crimes. In general, they either violate legal restrictions related to carrying out military actions or are directed against people or places protected by the humanitarian law.
The first of these categories features attacking civilian infrastructure (houses, schools, theatres, hospitals, heritage sites) or using forbidden weapons (chemical weapons, anti-infantry mines) and forbidden tactics (carpet bombing, attacking and terrorising civilians). The second one comprises killing civilians, torture and inhuman treatment, taking hostages, forced resettlement, sexual violence, deliberate destruction of private property, looting and similar behaviour.
War crimes can only be committed during armed conflicts, be it international or internal (e.g. when a state and/or organised military groups within it are fighting one another), and have to be related to that conflict. Although they are mostly committed by members of armed forces, civilians can also be found guilty of them. Most importantly, the responsibility for such acts is borne not only by those who carry them out, but also by their superiors, if they are proven to have known about it. The perpetrators may have various motivations, including revenge, greed, or simply cruelty.
Crimes against humanity
Sentences for crimes against humanity were first passed during the Nuremberg trials. They were related to the acts of barbarism committed by the Nazi Germans against subjugated nations, such as mass murders, deportation, persecution and enslavement. Currently, article 7 of the Roman Statute specifies that crimes against humanity include murder, extermination, slavery, deportation or forced resettlement, torture, persecution (for instance, for political or religious reasons), rape, forced prostitution, enforced disappearance and apartheid.
It is noteworthy that crimes against humanity can only be committed against civilians, both in peacetime and during war. They must also be a part of a larger attack (understood not as a military operation, but rather as a set of behaviours) characterised by:
- Mass scale (involving a great number of victims);
- Systematic approach (realised methodically and according to a plan, using private or public funds).
To be classified as a crime against humanity, such an attack must be carried out in support of or in accordance with a state or organisation policy and in full awareness.
The term ‘genocide’ was coined by Polish lawyer Rafał Lemkin in his 1944 book Axis Rule in Occupied Poland, where he combined the Greek word genos (‘nation’) with Latin caedere (‘to kill’). After World War II, he actively campaigned for a convention against it. He succeeded – shocked by the Holocaust, the UN member states ratified the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
The Convention states that ‘any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group’.
Genocide can be committed during peacetime as well as war. Moreover, even conspiracy or public incitement to the commitment of genocide are punishable offences.
An important part of the crime of genocide that can serve to distinguish it from other international crimes is genocidal intent, as any of the abovementioned actions must be performed with the intention of destroying a particular group, making genocide a hate crime. In the case of genocide, social or economic factors are not taken into consideration.
Crimes of aggression
Crimes of aggression became a punishable offence in 2010, when the signatories of the Statute of the International Criminal Court (Rome Statute) amended the Statute by agreeing on the definition of the crime as well as how the Court will enforce jurisdiction over it. According to the Statute, aggression constitutes ‘planning, or organizing, or preparing, or participating in the first use of armed force by a State against the territorial integrity and political independence of another State in contravention of the UN Charter, provided the acts of aggression concerned have large-scale and serious consequences’. Therefore, an act of aggression entails both an invasion or the use of any kind of weaponry by one state against another, as well as allowing third parties to make use of a state’s territory to attack other states (or providing assistance to these states, or any other organised military forces sent on their behalf).
Crimes of aggression are, in consequence, very serious acts against the UN Charter that result in annexation or occupation. Only an individual with a key influence on state policy can be a perpetrator of this crime, though this influence does not need to be institutionally formalised in any way (e.g. the perpetrator could be an influential member of a ruling party or a proponent of a specific ideology).
Original text: www.nauka.uj.edu.pl