Israel's war on Gaza: What is the definition of a war crime?
Editor's note: This is one of four explainers about international law, which include an overview, as well as pieces about genocide and crimes against humanity.
War crimes are among the oldest of recognised international crimes, with campaigners trying to mitigate their impact since the mid-19th century. Two hundred years later, and accusations are rife that both Israel and the Palestinian group Hamas have committed war crimes following the attack of 7 October 2023 on southern Israel and the subsequent war on Gaza.
What is a war crime?
Armed conflict is subject to rules to protect those who are not fighting, including civilians, prisoners of war, and wounded combatants among others. A war crime occurs when such rules are broken.
New MEE newsletter: Jerusalem Dispatch
Sign up to get the latest insights and analysis on Israel-Palestine, alongside Turkey Unpacked and other MEE newsletters
They also state that warfare should not cause unnecessary suffering among combatants, for example through the use of armaments such as biological and chemical weapons.
All these rules are known as International Humanitarian Law (known as IHL) or the Law of Armed Conflicts and are intended to mitigate the horrors of war.
What is International Humanitarian Law?
IHL is a body of work that draws on international treaties, statutes, conventions, and unwritten rules of international law which are based on customary law.
It applies to wars between countries, as well as civil wars within a country. But IHL does not prohibit wars: it only offers protection to those who are not directly involved. IHL has three key principles:
Distinction: Parties in an armed conflict must distinguish between combatants and civilians, as well as military and civilian objects. Only legitimate military targets can be deliberately targeted. Targeting civilians or civilian infrastructure violates IHL.
Proportionality: Even when targeting military objectives, attacks must not cause excessive civilian harm in relation to the expected military advantage. If the collateral damage (eg civilian deaths) is disproportionate to the military gain, then the attack can violate IHL.
Precaution: Parties must take all feasible measures to minimise harm to civilians and civilian objects. That includes verifying targets, issuing warnings when possible, and choosing means of warfare that reduce unnecessary suffering. Failure to take such precautions can violate IHL.
When was the principle of war crimes introduced?
Codes of conduct to regulate warfare predate the modern formalisation of IHL. For example, many ancient civilisations including those of Greece, Rome, China and the Islamic world, had rules restricting unnecessary suffering in war and prohibiting the targeting of non-combatants.
Rules also existed in the US and elsewhere to govern the conduct of troops since the early 19th century. But, they did not address certain situations, such as the treatment of prisoners of war. Two key developments within a few years of each other during the 19th century marked key turning points. Each resulted from bloody conflicts.
The Battle of Solferino, in northern Italy on 24 June 1859, was part of the Second Italian War of Independence between French and Sardinian forces against the Austrian Empire. It involved an estimated 250,000 men from all sides: at least 10,000 were killed. What set it apart was not just its scale but the horrific suffering of the wounded, many of whom were left to die on the battlefield.
Swiss businessman Henry Dunant was among those who witnessed the aftermath, and was deeply affected by the lack of organised medical care. He rallied local civilians to aid the wounded: his publication, A Memory of Solferino (1862), sparked a movement that led to the creation of the International Committee of the Red Cross (ICRC) in 1863, for which he received the first Nobel Peace Prize in 1904.
Another result was the First Geneva Convention in 1864, which was ratified by 57 states and was the earliest formalisation of international humanitarian law. Its focus was less on the conduct of forces during the war, more on mitigating the aftermath, establishing protections for wounded soldiers and medical personnel in wartime, as well as the principle of equal application: that injured troops shall be taken care of, regardless of “whatever nation they may belong”.
Similar moves were also happening in the US amid the outbreak of civil war. Franz Lieber, a German intellectual who taught at Columbia Law School, was tasked along with four generals in drawing up a code to govern the conduct of Union forces. The Lieber Code, as it became known, was formally issued by US President Abraham Lincoln in 1863. Troops were prohibited by their leaders, for example, from acts of torture and cruelty. There were also rules to govern the treatment of prisoners of war and property.
The Lieber Code may have been a national document but it went on to shape international humanitarian law, especially the Hague Conventions of 1899 and 1907, which were among the first major international treaties aimed at regulating sides at war with each other. The conventions also formalised the difference between combatants and non-combatants, laying the groundwork for later IHL.
How did the prosecution of war crimes evolve?
The first significant attempt to prosecute war crimes came after World War I, when the Treaty of Versailles (1919), drawn up by the victorious Allied powers including the US and UK, proposed trials for the defeated German leaders.
The effort largely failed. But it did result in a list of 32 war crimes and started a precedent that specific war crimes should be prohibited. This idea evolved at the post-World War Two trials at Nuremberg and Tokyo in 1946.
The definition of war crimes was later expanded in the Geneva Conventions of 1949 and its related articles, which formed the framework of modern IHL.
These include rules on the treatment of wounded soldiers and members of the armed forces at sea; the treatment of prisoners of war; and prohibitions on attacks against civilians during armed conflicts.
Then came the ad hoc tribunals, including those of the 1990s that focused on the former Yugoslavia (ICTY) and Rwanda (ICTR); the Rome Statute in 1998; and finally the International Criminal Court (ICC) in 2002. Each of these, and other courts and tribunals, have shaped International Criminal Law, which is used to prosecute war crimes.
What is the list of war crimes?
Accusations of war crimes can be considered by international courts, ad hoc tribunals, and national jurisdictions. Crucially, the four Geneva Conventions of 1949 and their Additional Protocol I also include what are technically known as grave breaches - rules which if contravened will constitute war crimes, the most serious violations of conduct during war.
Perhaps the most extensive list of war crimes can be found in Article 8 of the Rome Statute. It includes war crimes that are mentioned in all IHL treaties, as well as other crimes that are considered a part of customary law.
The article also explains the difference between crimes committed during international armed conflicts; and those that occur during non-international armed conflicts, for example government forces against non-state armed groups; or between groups themselves.
When it comes to international armed conflict, war crimes include:
- Wilful killing
- Torture or inhumane treatment
- Causing great suffering or serious injury to protected persons, such as prisoners of war and civilians
- Intentionally directing attacks against civilians
- Targeting humanitarian personnel or peacekeepers
- Destroying property without military necessity
- Compelling prisoners of war to serve in hostile forces
- Denying fair trials
- Taking hostages
- Deporting or transferring populations
- The use of prohibited weapons, such as poison or poisoned weapons, asphyxiating gases, and expanding bullets
For non-international armed conflicts, war crimes include:
- Murder
- Mutilation
- Cruel treatment
- Torture
- The taking of hostages
- Attacks on humanitarian personnel
- Sentencing or executing individuals without due process
- Pillaging
- Rape
- Sexual slavery
- Forced prostitution
- The use of child soldiers
- Ordering civilians to be displaced without military justification
- Intentionally directing attacks against places of worship, hospitals, and cultural sites
Then there are several crimes that are prohibited for both international and non-international conflicts:
- Sexual violence
- Recruitment of child soldiers
- Attacks on civilians
- Destruction of humanitarian infrastructure
Who decides if a war crime has been committed?
National courts can find individuals guilty of war crimes. The ICC rules on the criminal responsibility of individuals if it decides a national judiciary is unable or unwilling to take action.
That's happened in both Israel and Afghanistan during the past year, where national courts have refused to take action against leaders and high-ranking officials.
International investigative bodies, such as UN commissions of inquiry, can also argue that serious violations of IHL have been committed. Rights groups including Human Rights Watch and Amnesty International often conduct their own legal analysis that concludes whether war crimes have been committed.
How does the ICC start to prosecute a war crime?
The ICC is responsible for most of the most noted cases against individuals accused of war crimes. But for a case to proceed, several steps need to be taken: these can take months or years, as with the ongoing case against Israeli Prime Minister Benjamin Netanyahu.
First, it must be determined if there has been an armed conflict, either between countries (international conflict); or between a country and another entity such as a group (non-international conflict). Second, the alleged crimes must be part of this conflict.
What happens next?
A prosecutor will carry out a preliminary examination to decide if there is a reasonable basis on which to proceed. If there are, then there will be a formal investigation, during which evidence will be gathered, including witnesses, forensic reports, satellite imagery, and official documents.
Once the prosecutor has enough evidence, they will request that arrest warrants or summonses are issued for the suspects. The ICC Pre-Trial Chamber reviews the evidence and decides whether to approve the request, and whether the charges are well-founded.
The Chamber may issue warrants: the accused may be apprehended and transferred to the ICC for trial. Importantly, a trial cannot proceed if the accused are not present.
What happens during a war crimes trial?
The prosecution, defence and victims' lawyers present their arguments, witness testimonies, and cross-examinations before a panel of judges, called the Trial Chamber.
The prosecution needs to prove beyond reasonable doubt that the accused is guilty. To do this they need to establish three things: (i) the crimes took place; (ii) there was a link between the conflict and the alleged crimes; (iii) that the crimes were committed intentionally.
What do the judges need to establish?
The judges must determine whether individual criminal responsibility has been established beyond reasonable doubt. The Rome Statute includes four ways in which the ICC can hold an individual responsible for the four crimes within its jurisdiction. They are:
- Direct perpetration: The individual committed the crime themselves
- Co-perpetration: Several individuals had control over the crime
- Indirect perpetration: Someone used another person to commit the crime, for example through an organised structure of power
- Soliciting, inducing, or ordering a crime, as well as aiding, abetting, or otherwise assisting in its commission
The Statute also makes superiors and commanders liable for crimes committed by their subordinates when (i) they knew or should have known about the crimes and (ii) failed to prevent or punish them. Attempted crimes are also punishable under the Statute, provided there was a substantial step toward their commission.
What about the verdict?
After deliberation, the judges issue a verdict, determining guilt or innocence beyond reasonable doubt. If convicted, a sentencing hearing follows, when penalties such as imprisonment and reparations for victims may be imposed. The decision can be appealed before the ICC’s Appeals Chamber.
Has anyone been convicted of war crimes?
In 2012, the ICC delivered its first guilty verdict against Congolese militia leader Thomas Lubanga Dyilo for the war crimes of enlisting and conscripting children under the age of 15 to participate in hostilities.
In 2012, the Special Court for Sierra Leone, an ad hoc tribunal, convicted Charles Taylor, the former president of Liberia, of aiding and abetting war crimes for arming, training, and financing rebels who committed murder, rape and sexual slavery among others during the Sierra Leone civil war (1991-2002).
Taylor became the first former head of state convicted by an international tribunal since Nuremberg and was sentenced to 50 years, which is he now serving in a UK prison.
Middle East Eye delivers independent and unrivalled coverage and analysis of the Middle East, North Africa and beyond. To learn more about republishing this content and the associated fees, please fill out this form. More about MEE can be found here.
