In a war, the chaos of violence often allows for criminal behaviour by states and non-state actors alike. Whether it is murder, pillage or enlistment of children as combatants, violations of international law during conflict are known as war crimes. These are serious violations of humanitarian law (which has its origin in the Geneva Conventions) that can be prosecuted internationally and in domestic courts.
In the past, such crimes were only punishable through ad hoc tribunals and more recently, the UN has recognised ‘universal jurisdiction’ that allows national courts to prosecute genocide and war crimes wherever they occur. Likewise, the ICC has prosecuted individuals over alleged war crimes committed in various parts of the world.
At the core of these prosecutions is the concept of command responsibility. It requires that a person was involved in the formulation and execution of a plan to commit one or more war crimes. The fact that a person acted in accordance with an order by a superior does not absolve them of their responsibility.
Unlike crimes against humanity or genocide, war crimes always take place within the context of an armed conflict, whether international or not. They are usually committed by military forces and can involve civilians or military personnel.
This is a very complex area of the law and for this reason, prosecutors must be very careful in interpreting evidence to ensure that they have enough evidence to secure convictions. For more information on the subject, we suggest visiting the Office on Genocide Prevention and the Responsibility to Protect website.
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