However, isolated cases of terrorism and individual acts of rebellion are rarely, if ever, treated as punishable war crimes under the international rules of war. Instead, they are generally treated as criminal offences punishable under the domestic laws of the country in which they are committed. Traditional war crimes consist of acts that violate accepted customs, practices and laws of war that have been followed by civilized nations for centuries. These rules of war govern the rights and obligations of belligerent States, prisoners of war and occupying powers, as well as combatants and civilians. They also impose restrictions on the types of weapons that warring parties can use during combat. Soldiers, officers and members of the High Command can all be held responsible for violating accepted customs and practices of war, whether they issue an order ordering an unlawful act or simply follow such an order. Immediately after the First World War, the victorious Allied Powers convened a special commission on the responsibility of warwrights and on the enforcement of sentences. The Commission`s report recommended that war crimes trials be held before the victors` national courts and, if necessary, before an inter-allied tribunal. The Allies drew up an initial list of about 900 suspected war criminals and submitted it to Germany. Although heads of state have traditionally enjoyed immunity from prosecution, the commission`s main target was German Kaiser Wilhelm II, whom most Allies (but not the United States) wanted to hold accountable for numerous violations of the laws of war. However, William sought refuge in the Netherlands, which refused to extradite him, and he was never brought to justice. Most of the alleged war criminals remaining on the list were also able to escape prosecution because Germany was reluctant to hand them over to the Allies.
Instead, a compromise was reached in which the Allies allowed a small number of suspects in Germany to be tried before the Supreme Court in Leipzig. These prosecutions resulted in few convictions, with most sentences ranging from a few months to four years in prison. During air strikes, pilots generally have to rely on information provided to external sources (headquarters, ground forces) that a particular position is in fact a military target. In the case of the former Yugoslavia, NATO pilots hit a civilian object (U.S. bombing of the Chinese embassy in Belgrade) that had no military significance, but the pilots had no idea how to determine it other than their orders. The committee ruled that “the crew involved in the attack should not be held responsible for being assigned the wrong target, and that it is inappropriate to attempt to attribute criminal responsibility for the incident to senior officials because they received false information from officials of another agency.” [41] The report also notes that “much of the material submitted to the OTP consisted of reports that civilians had been killed, often suggesting that crimes had been committed as a result. Collateral civilian casualties and collateral damage to civilian objects may occur for a variety of reasons. [41] For example, conducting an operation in an ammunition depot or terrorist training camp would not be prohibited because a farmer is ploughing a field in the area, is not the target of an attack, and the operations would be proportionate and militarily necessary. On the other hand, an extraordinary military advantage would be necessary to justify an operation that carries the risk of death or collateral injury to thousands of civilians. In “grey cases”, the legal question of whether the expected incidental damages are excessive can be very subjective.
For this reason, states have chosen to apply a “clearly exaggerated” standard to determine whether a criminal violation has occurred. [40] German General Lothar Rendulic was accused of ordering the mass destruction of civilian buildings and land while retracting an alleged enemy attack as part of a so-called scorched-earth policy aimed at preventing the enemy from using land. He overestimated the perceived risk, but argued that The Hague IV authorized destruction because it was necessary for war. He was acquitted of this charge. The term war crime was difficult to define precisely, and its use has continued to evolve, particularly since the end of the First World War. The first systematic attempt to define a wide range of war crimes was the Instructions for the Government of the United States Armies in the Field – also known as the “Lieber Code” after its principal author, Francis Lieber – issued by U.S. President Abraham Lincoln during the American Civil War and distributed to Union military personnel in 1863. For example, the Lieber Code stated that it was a “grave violation of the laws of war to compel the enemy`s subjects to serve the victorious government” and prohibited “gratuitous violence against persons in the invaded country,” including rape, mutilation, and murder, all of which carry the death penalty.
More recently, definitions of war crimes have been codified in international law, such as the establishment of the International Criminal Court and war crimes tribunals in Yugoslavia and Rwanda, for use in international war crimes tribunals. Unlike previous definitions, modern definitions are broader and criminalize certain conduct committed by civilians and military personnel. The Geneva Conventions are four interdependent treaties adopted and continuously expanded from 1864 to 1949, providing a legal basis and framework for international warfare. Each Member State of the United Nations has currently ratified the conventions, which are generally recognized as customary international law and applicable to all situations of armed conflict in the world. However, the Additional Protocols to the Geneva Conventions adopted in 1977, which contain the most relevant, detailed and comprehensive protection of international humanitarian law for persons and property in modern warfare, are still not ratified by a number of States constantly involved in armed conflicts, namely the United States, Israel, India, Pakistan, Iraq, Iran and others.
