WHAT ARE VIOLATIONS OF THE LAWS OF WAR OR INTERNATIONAL HUMANITARIAN LAW ?

War crimes are those violations of the laws of war—or international humanitarian law (IHL)—that incur individual criminal responsibility. The 1949 Geneva Conventions, which codified IHL after World War II, also marked the first inclusion in a humanitarian law treaty of a set of war crimes—the grave breaches of the conventions. Each of the four Geneva Conventions (on wounded and sick on land, wounded and sick at sea, prisoners of war, and civilians) contains its own list of grave breaches.

The list in its totality is: willful killing; torture or inhuman treatment (including medical experiments); willfully causing great suffering or serious injury to body or health; extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or civilian to serve in the forces of the hostile power; willfully depriving a prisoner of war or protected civilian of the rights of a fair and regular trial; unlawful deportation or transfer of a protected civilian; unlawful confinement of a protected civilian; and taking of hostages.

Additional Protocol I of 1977 expanded the protections of the Geneva Conventions for international conflicts to include as grave breaches: certain medical experimentation; making civilians and non defended localities the object or inevitable victims of attack; the perfidious use of the Red Cross or Red Crescent emblem; transfer of an occupying power of parts of its population to occupied territory; unjustifiable delays in repatriation of POWs; apartheid; attack on historic monuments; and depriving protected persons of a fair trial. Under the Geneva Conventions and Additional Protocol I, States must prosecute persons accused of grave breaches or hand them over to a State willing to do so. The grave breaches provisions only apply in international armed conflicts; and they only apply to acts against so-called protected persons or during battlefield activities. Protected persons are, in general, wounded and sick combatants on land and sea, POWs, and civilians who find themselves in the hands of a state of which they are not nationals. Most violations of the Geneva Conventions and Additional Protocols are not grave breaches. Of those not listed as grave breaches, many are still considered war crimes, although in those cases States do not have the same obligation to extradite or prosecute as they do for grave breaches. Other non grave breaches are not war crimes, but simply illegal acts for which only the violating State is responsible under international law. Distinguishing among non grave breaches to determine which are crimes is not an exact science, though it would seem that the more serious non grave breaches do incur individual responsibility. The U.S. military maintains that all violations of the laws of war, including those of the Geneva Conventions, are war crimes. Wartime atrocities not prohibited under the Geneva Conventions or Additional Protocol I may nonetheless be war crimes under the customary law rubric of “violations of the laws and customs of war” (the same phrase as in the Nuremberg Charter).

For interstate conflicts, states agree that such war crimes include certain violations of the 1907 Hague Convention and Regulations, such as use of poisonous weapons, wanton destruction of cities not justified by military necessity, attacks on undefended localities, attacks on religious and cultural institutions, and plunder of public and private property.

The Statute of the International Criminal Court (ICC) lists as war crimes for international conflicts not only the grave breaches of the Geneva Conventions, but some twenty-six serious violations of the laws and customs of war, most of which have been considered by States as crimes since at least World War II.

The definitional nexus of war crimes to armed conflict means that the atrocities against civilians committed by actors identified as terrorists do not always fit neatly within the existing categories of war crimes. As a general matter, it can be argued that the war paradigm and war crimes moniker simply should not apply to most of their actions, as they are engaged not in a war (interstate or civil), where international law accepts much belligerent activity as lawful, but rather in a criminal enterprise in which all acts are illegal. In this sense neither the Geneva Conventions nor customary law regarding war crimes captures the nature of their crimes. Insofar as terrorist activities by non-State actors are committed as part of a more paradigmatic interstate or civil war, e.g., an insurgent group working for one side blows up a civilian bus, these could well constitute grave breaches of the Geneva Conventions or other violations of the laws and customs of war, including those applying to civil conflicts. The United States government seems to hold that some terrorist acts, even those not associated with existing interstate or civil wars, are indeed “violations of the laws and customs of war.” The far simpler legal characterization is to identify them as crimes against humanity, which lacks any required nexus to armed conflict.

Finally, the creation of a body of law criminalizing certain violations of the laws of war does not mean that war criminals will actually be prosecuted. This remains a matter for States and, increasingly, the United Nations and other international organizations. The Geneva Conventions require all parties to search for and either extradite or try all persons suspected of having committed grave breaches. And international law gives all States the legal right to prosecute war criminals under the theory of universal jurisdiction. While States have at times prosecuted war criminals , the more pervasive pattern, despite the obligations of the Geneva Conventions, is either mere administrative punishment or impunity.

Possible Violations in the Israel-Gaza Conflict

• Attacks on homes
• Attack on schools
• Attacks on hospitals
• Attacks on UN premises
• Defiance of obligations under international law
• Improper investigation of violations committed during air strikes and ground assault, although the international law is clear that where a state is unable or unwilling to carry out investigations and prosecutions, the international (criminal justice) system applies