WAR CRIMES AND LAW

War Crimes and Law

War Crimes and Law

Introduction

A war crime is the violation of the laws of warfare (usages or customs of war) committed by any persons military or civilian. There is a distinction to be made between the rules of warfare and war crimes. H. Lauterpacht defines war crimes as offenses against the laws of war that are criminal in the ordinary and accepted sense of the word. They are to be distinguished from traditional criminal laws by reason of their heinousness, their brutality, their ruthless disregard for the sanctity of human life, and their wanton interference with rights of property unrelated to reasonably conceived requirements of military necessity.

National Codes

National war crimes codes regulating the conduct of armies have existed for centuries. The first significant national modern war crimes code that went beyond matters of strict military discipline was drafted by Francis Lieber. In 1863, President Lincoln set in train promulgation by the War Department to settle a series of instructions for the U.S. Army to use in the field of battle. These instructions were prepared by Francis Lieber, a German veteran of the Napoleon wars who had immigrated to the United States and became a professor of law and political science at Columbia University. The instructions comprised some 159 articles covering matters such as “military necessity,” punishment of crimes against the inhabitants of hostile countries, prisoners of war, and spies.

Lieber drafted his code for use in the American Civil War, and parts of it are still to be found in the U.S. military code. Although national codes are not a part of international criminal law, they have contributed to customary international law and constitute evidence of customary law. Furthermore, the expressed opinion of states, particularly in cases where such opinion is generally accepted by other states, not only evidences the existence of customary international law but also demonstrates a change in what was previously accepted as customary international law (Schwarzenberger, 1996).

The Hague Law

At around the same time that Lieber was drafting his code, in Europe; Czar Alexander II of Russia proposed the idea of holding an international conference to ban the use of lightweight bullets, which exploded on contact with human flesh. As a consequence, the Declaration of St. Petersburg in 1868 prohibited the use of explosive projectiles under 400 grams in weight. This was the first international convention in modern times to prohibit the use of a particular weapon of war, although it must be said that crossbows and the like had been prohibited in earlier times(Sunga, 1997).

The St. Petersburg Declaration provided that the “only legitimate objective which states should endeavor to accomplish during war is to weaken the military forces of the enemy and that the unnecessary use of weapons which uselessly aggravate suffering were contrary to the laws of humanity.”

In 1899, Czar Nicholas II of Russia proposed another conference, this time in The Hague, Netherlands. The purpose of the conference was to consider banning the dropping of bombs from balloons, the use ...