So far, we've seen how genocide and crimes against humanity evolved through the practice of crimes. Let's now have a look at war crimes, the third and oldest category of atrocity crimes. War crimes are grounded in international humanitarian law, traditionally known as jus in bello, the law of war. It regulates the conduct of parties engaged in an armed conflict and seeks to minimize suffering and harm. It's based on a balancing between military and humanitarian considerations. In this video, we will discuss how the concept of war crimes evolved in practice, and how it relates to fundamental principles of international humanitarian law. International humanitarian law is typically divided into two traditions, the so-called Hague law and the Geneva law. The Hague Law emerged during the Peace <br>Conferences in 1899 and 1907. It is geared towards limiting the means of harming the enemy. Geneva Law is primarily designed to <br>protect victims of armed conflict and specific categories of persons, such as prisoners of wars, detainees, civilians, and humanitarian aid workers. Geneva Law is mostly contained in <br>the four Geneva Conventions of 1949, to which nearly every state agreed to be bound. The definition of a war crime changed through practice in the 20th century. The Geneva Conventions and its Protocols expressly qualify the <br>so-called grave breaches as war crimes. But the list of crimes has been extended. In 1995, the ICTY gave a rule of thumb in the Tadic decision. It said that the violation must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. Typically, the law of war crimes only covered crimes in international armed conflict. But is this still contemporary? Most conflicts in the world today are non-international in nature. In 1995, the Tadic decision of the Yugoslavia Tribunal broke the artificial distinction between the two types of armed conflict. Today, it is recognized that war crimes <br>apply not only to interstate violence or conflict between a government and an armed group. They also apply to conflicts between two or more organized armed groups. In cases of an internal armed conflict, the armed violence needs to be of sufficient intensity in order to make it distinguishable from sporadic acts of violence and internal disturbances. The main test is whether there is protracted armed violence. This is determined by the intensity of the hostilities and the capacity of armed groups to carry out attacks. This extension has allowed international courts and tribunals to prosecute war crimes committed between armed groups in the context of the civil war in Sierra Leone, the Balkans conflict, and the Ituri conflict in the Democratic Republic of the Congo. The list of war crimes is more extensive in the context of international armed conflict. But what makes a conflict international? Different courts have provided different answers. International criminal courts and tribunals have adopted a more relaxed test than the International Court of Justice in determining the international nature of an armed conflict. They have held that a conflict between a state and an armed group can be international if a third state exercises overall control over the organized armed group. This test differs from the more demanding effective control test, set by the International Court of Justice in the famous Nicaragua judgement in the 1970s and subsequent rulings in disputes between states. The overall control test is thus, <br>to some extent, specific to international criminal law and individual criminal responsibility. Finally, there's a requirement of a nexus, or a connection to the armed conflict. This connection is necessary to distinguish war crimes from ordinary offenses. So let us now take a look at individual crimes. The large majority of war crimes can be traced back to the violation of certain fundamental principles of international humanitarian law. They're grounded in the protections of persons and the protection of property. But what principles are we actually talking about? The first fundamental principle is the principle of the protection of non-combatants. It requires parties to an armed conflict to treat civilians, prisoners of war, and wounded or sick former combatants humanely. The ad hoc tribunals were pioneering. They recognized rape as a violation of the laws and customs of law, and as a basis of torture under Geneva Conventions. Property of non-combatants is also protected. A second fundamental principle is the principle of distinction. It requires parties to an armed conflict to distinguish civilians and civilian objects from members of the armed forces that are not used for military purposes from civilians who directly participate in hostilities and from military objectives. Parties to an armed conflict may only direct their attacks against the latter, the military objective. Special protection also attaches to humanitarian assistance and peacekeeping missions, and to buildings dedicated to religion, art, science, or charitable purposes, or to historic monuments. Prosecutors have brought charges in relation to the destruction of historic sites, such as the Old Town of Dubrovnik in Croatia or Timbuktu in Mali. A third fundamental principle under international humanitarian law is the principle of proportionality. It prohibits an attack on a military objective if such an attack may be expected to cause excessive collateral damage, such as loss of civilian life, injury to civilians, and damage to civilian objects. In the ICC, this protection is also extended to the environment. The fourth fundamental principle is a prohibition of employing weapons, material, and methods of warfare that cause superfluous injury and unnecessary suffering to members of the armed forces, and to civilians who directly participate in hostilities. A classical prohibited means of warfare is the use of weapons that cause unnecessary suffering. Examples are poison and poisoned weapons, biological and chemical weapons, and nuclear weapons. Biological, chemical, and nuclear weapons are not expressly marked as a prohibited weapon category. But their actual use would, as the International Court of Justice put it, generally be contrary to the rules of international law applicable in armed conflict and, in particular, the principles and rules of humanitarian law. Another recent addition to the prohibited methods of warfare is the use of child soldiers. The ICC Statute expressly defined it <br>as a war crime in international and non-international armed conflict. It formed the basis of the first ICC trial, the Lubanga case. We will discuss this case in more detail in video eight of this module and throughout the coming weeks. So what have we seen during this lecture? The law on war crimes has been significantly shaped by the practice of international criminal courts and tribunals. These courts brought international laws out of theory into the court room. But these transformations also raise certain criticisms. International criminal courts and tribunals reason primarily through the lens of accountability. But are judges well-equipped to define the rules that apply in the battlefield? Can we judge non-state armed groups along the same standards as traditional armies? One shadow side of this is the growing unpredictability of legal standards and regimes. The ICC Statute is not in all <br>aspects an authoritative account of the current state of the law. It is complemented by prohibitions under customary law. This makes it difficult for actors to foresee and to apply the law. In the next two videos, we will therefore discuss how individuals can be linked to the core crimes.
