1. The Ad Hoc International Criminal Tribunals

a. The International Military Tribunals of Nuremberg and Tokyo

War crimes and crimes against humanity committed during World War II were punished by the international military tribunals in Nuremberg and Tokyo. These two tribunals—set up on an ad hoc basis by the Allies on 8 August 1945 and 18 January 1946, respectively—judged members of the armed forces of the defeated countries who had committed such crimes.

The Statute of the Nuremberg Tribunal makes a distinction between different kinds of crimes committed in times of war: crimes against peace, war crimes, and crimes against humanity. Article 6 of the Statute defines these crimes in the following manner:

• Crimes against peace are those aimed at the “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties.” Crimes against peace are not subject to any statute of limitations.
• War crimes include:

—murder, ill treatment, or deportation as slave labour or for any other purpose, of the civilian population in occupied territory;

—murder or ill treatment of prisoners of war or persons on the seas;

—killing of hostages and plunder of public or private property;

—wanton destruction of cities, towns, or villages;

—devastation not justified by military necessity.

• War crimes are committed in times of war and are not subject to any statute of limitations.
• Crimes against humanity concern the “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal.” This definition applies to crimes committed in times of war or in relation to war.

However, this principle has been included in the Statute of the ICC signed in 1998 and ratified by 124 States in 2024. Article 29 of the Rome Statute provides that “the crimes within the jurisdiction of the Court [that is, according to Article 5 of the Statute, the crime of genocide, crimes against humanity, war crimes, and the crime of aggression] shall not be subject to any statute of limitations.” ➔ Non-applicability of statutory limitations

b. The Ad Hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda

Two ad hoc International Criminal Tribunals were set up in 1993 and 1994 by a binding decision of the Security Council of the UN to prosecute crimes committed in the former Yugoslavia and in Rwanda. Unlike the Nuremberg and Tokyo tribunals, these are civilian institutions. In their Statutes, new definitions of war crimes and crimes against humanity were adopted. Namely, these refer to grave breaches of the 1949 Geneva Conventions.

Furthermore, the Tribunals’ Statutes incorporate violations of Common Article 3 to the four Geneva Conventions and of Additional Protocol II, which refer to non-international armed conflicts (such as Rwanda’s) in their definition of crimes. This represents an important step toward punishing serious violations of (IHL) committed in the context of non-international armed conflicts. ➔ International Criminal Tribunals

The power of these Tribunals is restricted by their ad hoc nature, which means that their jurisdiction is strictly limited to certain specified crimes, committed during a limited time frame on a specific territory.

2. The International Criminal Court’s Crimes Definition and Prosecutorial System

The Rome Statute of the ICC was adopted in Rome on 17 July 1998 and entered into force on 1 July 2002, when the 60th State ratified the Statute. Following certain preconditions, the ICC is responsible for prosecuting individuals accused of crimes of genocide, war crimes, and crimes against humanity, when no state is willing or able to carry out the investigation or prosecution itself. ➔ International Criminal Court

The ICC complements national prosecution mechanisms—since it operates only when states fail to prosecute the crimes over which it has jurisdiction. ➔ Penal sanctions in humanitarian law ▸ Universal jurisdiction

➔ Children ▸ International Criminal Tribunals ▸ Rape ▸ Women

a. The Definition of Crimes against Humanity: Article 7 of the Rome Statute

1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

1. Murder;
2. Extermination;
3. Enslavement;
4. Deportation or forcible transfer of population;
5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
6. Torture;
7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
8. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
9. Enforced disappearance of persons;
10. The crime of apartheid;
11. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

2. For the purpose of paragraph 1:

1. “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
2. “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;
3. “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;
4. “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;
5. “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, on a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
6. “Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;
7. “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;
8. “The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;
9. “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

3. For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above. (Art. 7 of Rome Statute)

b. The Definition of War Crimes: Article 8 of the Rome Statute

Article 8 of the Rome Statute distinguishes between war crimes committed in international armed conflict (IAC) and in non-international armed conflict (NIAC). The definition of war crime in IAC is contained in article 8(2)(a) to (d). War crimes in NIAC are defined in article 8(2)(e).

1. The Court has jurisdiction in respect of war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes. The Statute defines war crimes in the two types of conflict.
2. For the purpose of this Statute, “war crimes” perpetrated in an international armed conflict means:

1. Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

1. Wilful killing;
2. Torture or inhuman treatment, including biological experiments;
3. Wilfully causing great suffering, or serious injury to body or health;
4. Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
5. Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
6. Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
7. Unlawful deportation or transfer or unlawful confinement;
8. Taking of hostages.

2. Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

1. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
2. Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
3. Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;
4. Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
5. Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
6. Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;
7. Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;
8. The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;
9. Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
10. Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;
11. Killing or wounding treacherously individuals belonging to the hostile nation or army;
12. Declaring that no quarter will be given;
13. Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war;
14. Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;
15. Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war;
16. Pillaging a town or place, even when taken by assault;
17. Employing poison or poisoned weapons;
18. Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; (xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;

20. Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in Articles 121 and 123;
21. Committing outrages on personal dignity, in particular humiliating and degrading treatment;
22. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7 [on crimes against humanity], paragraph 2(f), enforced sterilization, or any other form of sexual violence also a grave breach of the Geneva Conventions;
23. Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
24. Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
25. Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;
26. Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

3. In the case of an armed conflict not of an international character (non-international armed conflict), serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

1. Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
2. Committing outrages on personal dignity, in particular humiliating and degrading treatment;
3. Taking of hostages;
4. The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

4. Paragraph 2(c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.
5. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

1. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
2. Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
3. Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the law of armed conflict; (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

22. Pillaging a town or place, even when taken by assault;

6. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2(f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;
7. Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;
8. Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;
9. Killing or wounding treacherously a combatant adversary;
10. Declaring that no quarter will be given;
11. Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;
12. Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict.

6. Paragraph 2(e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups. (Art. 8 of the Rome Statute).

It should be noted that in 2019, the Assembly of States Parties to the Rome Statutes adopted an amendment to the definition of war crimes applicable in NIAC detailed in article 8(2)(e). The new article (8)(2)(e)(xix) prohibits as a war crime in NIAC, the intentional use of starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including the willful impeding of relief supplies. However, this amendment is only applicable to the 16 States that have accepted it as of August 2024. Despite the limited effect of this amendment in most NIAC, such practices may also be prosecuted as inhumane treatment or crimes against humanity such as persecution or extermination, if they meet the criteria of the ICC definition, regardless of the existence or qualification of the armed conflict.

1. Violations of International humanitarian Law

Violations are the transgressions of IHL that are not further defined in the definition of grave breaches (discussed later). IHL does not provide a detailed, comprehensive definition of these other violations, the punishment of which is left up to the competent national authorities. The punishment of these crimes is carried out by the normal judicial and disciplinary control mechanisms—in other words, civilian or military tribunals.

These crimes may be the subject of amnesties within the framework of a national law adopted following an armed conflict. They may benefit from a statute of limitations, unlike the war crimes and crimes against humanity defined by the Nuremberg tribunals and the grave breaches of the Geneva Conventions for which there is no time limit for initiating proceedings. Violations must be examined in the context of a framework determining the scale of responsibility of national authorities, military commanders, and individuals. ➔ Penal sanctions in humanitarian law ▸ Responsibility

2. Grave Breaches of International humanitarian Law

The Geneva Conventions and Additional Protocol I of 1977, Relating to the Protection of Victims of International Armed Conflicts, clearly define a limited number of crimes that fall into the category of grave breaches. No statute of limitations can apply to these crimes, and IHL has established a specific system for penal sanctions.

The definition of these grave breaches varies depending on whether they were committed in international or non-international armed conflicts. The 1949 Geneva Conventions provide a first definition in the context of international armed conflicts (GCI Art. 50, GCII Art. 51, GCIII Art. 130 and GCIV Art. 147), which has been expanded and further detailed in Additional Protocol I (Art. 85).

a. Grave Breaches in International Armed Conflicts

1949 Geneva Conventions . Grave breaches are specific violations of the laws of armed conflict, which states are under the obligation to prevent and sanction. They involve any of the following acts, if committed against persons or property protected by the four Geneva Conventions:

• wilful killing, torture, or inhuman treatment, including biological experiments;
• deliberately causing great suffering or serious injury to body or health;
• unlawfully deporting, transferring, or confining a protected person or taking hostages;
• compelling a person protected by the Conventions (whether civilian or prisoner of war) to serve in the forces of an enemy power;
• depriving a protected person of his or her right to a fair and regular trial, as established by IHL;
• causing extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

These acts are hence forbidden when carried out against:

• civilians, the sick, and wounded (GCIV Art. 147);
• prisoners of war (GCIII Art. 130);
• the wounded, sick, and shipwrecked members of armed forces at sea (GCII Art. 51); and
• the wounded and sick in armed forces in the field (GCI Art. 50).

Additional Protocol I of 1977 (API Article 85 ). Acts described as grave breaches in the Conventions are grave breaches of Additional Protocol I if committed against:

• persons in the power of an adverse party protected by the Geneva Conventions and Additional Protocol I (as defined in API Arts. 44, 45 and 73) or in the entry on ➔ Protected persons ;
• the wounded, sick, or shipwrecked of the adverse party;
• the medical or religious personnel, medical units, or medical transports that are under the control of the adverse party and are protected by Additional Protocol I (API Art. 85(2)).

Furthermore, the following acts, in violation of Additional Protocol I, are considered grave breaches when they are committed wilfully and cause death or serious injury to body or health (API Art. 85(3)):

1. making the civilian population or individual civilians the object of attack;
2. launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects;
3. launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects;
4. making non-defended localities and demilitarized zones the object of attack;
5. making a person the object of attack in the knowledge that he is hors de combat;
6. the perfidious use, in violation of Article 37, of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective signs recognized by the Conventions or this Protocol. ➔ Attacks

The following acts are also regarded as grave breaches of IHL when committed wilfully and in violation of the Geneva Conventions or Additional Protocol I, even if they do not result in death or serious injury to body or health (API Art. 85(4))

1. the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, in violation of Article 49 of the Fourth Convention;
2. unjustifiable delay in the repatriation of prisoners of war or civilians;
3. practices of apartheid and other inhuman and degrading practices involving outrages on personal dignity, based on racial discrimination;
4. making the clearly-recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, for example, within the framework of a competent international organization, the object of attack, causing as a result extensive destruction thereof, where there is no evidence of the violation by the adverse Party of Article 53(b), and when such historic monuments, works of art and places of worship are not located in the immediate proximity of military objectives;
5. depriving a person protected by the Conventions of the rights of fair and regular trial.

Additional Protocol I of 1977 (API Article 11) . The physical or mental health and integrity of persons who are in the power of the adverse party—or who are interned, detained, or otherwise deprived of liberty—must not be endangered by any unjustified act or omission. Accordingly, it is prohibited to subject these persons to any medical procedure that is not indicated by their state of health and is inconsistent with generally accepted medical standards that normally would be applied under similar medical circumstances to nationals of the party conducting the procedure and who are not deprived of liberty (API Art. 11(1)). In particular, it is prohibited to carry out on such persons, even with their consent:

• physical mutilations;
• medical or scientific experiments;
• removal of tissue or organs for transplant, except where these acts are justified in conformity with generally accepted medical standards which would be applied under similar medical circumstances to nationals of the party conducting the procedure and who are in no way deprived of liberty (API Art. 11(2)).

Hence, any such wilful act or omission against a person under the control of a party other than the one on which he or she depends—which either violates any of the prohibitions enumerated above or fails to comply with the requirements governing such acts—is a grave breach of Additional Protocol I (API Art. 11(4)).

The only possible derogations that can be made from these prohibitions are “in the case of donations of blood for transfusion, or of skin for grafting, provided that they are given voluntarily and without any coercion or inducement, and then only for therapeutic purposes, under conditions consistent with generally accepted medical standards and controls designed for the benefit of both the donor and the recipient” (API Art. 11(3)).

b. Grave Breaches or Serious Violations Applicable to Non-international Armed Conflicts

No definition of grave breaches to the Geneva Conventions was included in Additional Protocol II or referred explicitly to in Common Article 3, which relate to the protection of victims of non-international armed conflicts. The question of which definition to apply and what punishment mechanisms are available in such situations has yet to be solved in a clear and unquestionable manner. The current tendency of armed conflicts—more frequently non-international than international—as well as the recent developments in international law, shows enlargement of existing definitions and systems of sanctions to cover war crimes and crimes against humanity in non-international armed conflicts. The Statutes and the jurisprudence of the international criminal jurisdictions have filled this void and developed the definition of war crimes applicable in those situations.

• In 1994, the Statute of the ad hoc International Criminal Tribunal for Rwanda establishes the Tribunal’s jurisdiction over crimes of genocide, war crimes, and crimes against humanity, as well as violations of Common Article 3 (explained above) to the four Geneva Conventions (also explained above) and of Additional Protocol II, which codifies the protection that must be provided for victims of internal conflicts.
• In 1998, the Statute of the ICC provided a detailed definition of the crimes committed in non-international armed conflicts over which it has jurisdiction (detailed above).
• The International Fact-Finding Commission, established pursuant to the Geneva Conventions (API Art. 90), has formally recognized its competence to investigate violations of Common Article 3 (which refers explicitly to non-international armed conflicts). Inquiries concerning such violations must follow the general conditions regulating the procedure and rules of request specific to the Commission.
• Common Article 3 to the four Geneva Conventions forbids:

1. violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture;
2. taking of hostages;
3. outrages on personal dignity, in particular humiliating and degrading treatment;
4. the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (GCI–IV Common Art. 3)

This evolution was enshrined in the study on the rules of customary IHL published by the ICRC in 2005 ( infra ).

➔ Human rights ▸ Individual recourse ▸ Respect for international humanitarian law ▸ Universal jurisdiction

c. Existing Structures for the Punishment of Grave Breaches

Several principles, definitions, and restrictions set the framework within which grave breaches can be punished.

• IHL forces states to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches (GIV Art. 146). It also limits the possibility of granting amnesties, whether in the context of negotiating peace accords or in any other circumstances. As mentioned, the Geneva Conventions provide that no state may absolve itself or any other state of any liability incurred with regard to violations of IHL (GCI Art. 51, GCII Art. 52, GCIII Art. 131 and GCIV Art. 148) . ➔ Amnesties
• Grave breaches are defined as war crimes (API Art. 85(5)). In certain cases, they may also be qualified as crimes against humanity. As such they are not subject to any statute of limitations, as per Article 1 of the International Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity adopted at the UN on 26 November 1968 as well as under Article 29 of the ICC Statute. The notion of non-applicability of statutory limitations to war crimes has become a norm of customary law. Indeed, Rule 160 of the 2005 ICRC customary IHL study states that “statutes of limitation may not apply to war crimes.” ➔ Non-applicability of statutory limitations
• The principle of universal jurisdiction, touched on earlier in this entry, reflects the international obligation of all states parties to the Geneva Conventions to punish grave breaches of IHL. It represents a genuine system of collective security on a judicial level. States are under the obligation to search for persons suspected of having committed or ordered such grave breaches. In ratifying the Geneva Conventions, they have also undertaken to bring such persons, regardless of their nationality, before their own courts. States may also transfer such persons to another state party, provided that this state has already initiated proceedings and that the accused would face appropriate punishment. To this effect, a system of mutual assistance in criminal matters between states parties is established by the Geneva Conventions (GCI Art. 49; GCII Art. 50; GCIII Art. 129; GCIV Art. 146; API Arts. 86 and 88).

• Provisions for a system of inquiry aimed at establishing the existence of violations are set up by the Geneva Conventions (GCI Art. 52, GCII Art. 53, GCIII Art. 132 and GCIV Art. 149). Such inquiries may be carried out only with the agreement of the concerned parties to the conflict. • An International Fact-Finding Commission was created, as per Article 90 of Additional Protocol I. It is a permanent independent organ in charge of investigating possible grave breaches and serious violations of IHL. Article 90 is optional, meaning that the Commission may only act with regard to countries that have recognized its competence.

  ➔ International Fact-Finding Commission

➔ Amnesties ▸ Duty of commanders ▸ Immunity ▸ Impunity ▸ Individual recourse ▸ International Criminal Court ▸ International Criminal Tribunals ▸ International Fact-Finding Commission ▸ Mutual assistance in criminal matters ▸ Non-applicability of statutory limitations; ▸ Penal sanctions of humanitarian law ▸ Responsibility ▸ Universal jurisdiction

1. Grave Breaches of the 1949 Geneva Conventions and War Crimes

**

The ICTY and the ICTR ruled that in order to prosecute an individual for grave breaches of the Geneva Conventions under Article 2 of the Statute, four preconditions were needed: (1) the existence of an armed conflict; (2) the establishment of a nexus between the alleged crimes and the armed conflict; (3) the armed conflict must be international in nature; and (4) the victims of the alleged crimes must qualify as protected persons pursuant to the provisions of the 1949 Geneva Conventions. See ICTY:*Blaškić case (29 July 2004, para. 170), Naletilić and Martinović case (31 March 2003, para. 176), Tuta and Stela case (31 March 2003, para. 176), Brdjanin case (1 September 2004, para. 121); and ICTR: Ntagerura et al. case (25 February 2004, para. 766) and Bagosora et al. case (18 December 2008, para. 2229).

In line with the*ad hoc International Criminal Tribunals, the ICC has found that in order to prove that a crime constitutes a war crime as defined in the Rome Statute, the nexus between the armed conflict and the alleged crimes must be proved ( Bemba case, 10 June 2008, para. 55; and Katanga et al . case, 30 September 2008, paras. 379–84).

In the*Tadić case (2 October 1995, para. 137), the Appeals Chamber of the ICTY made an innovative statement to fill the gap between international and non-international armed conflicts regarding grave breaches and war crimes definition. It decided that violations of Common Article 3 to the Geneva Conventions constitute war crimes, regardless of whether they occurred within an internal or an international armed conflict (para. 137). Therefore, despite the fact that the grave breaches list of the Geneva Conventions only applies to international armed conflicts and do not mention Common Article 3, judges ruled that according to customary law (which applies to states that have not ratified the Rome Statute of the ICC), war crimes that violate Common Article 3 (which lists forbidden behaviour and activities) may be sanctioned during both international and non-international armed conflict.

This move has been confirmed by later decisions. Indeed, in the*Bagosora et al. case (18 December 2008, paras. 2242 and 2250), the ICTR Trial Chamber ruled that according to Article 4 of the Statute, “the Tribunal has the power to prosecute persons who committed or ordered serious violations of Common Article 3 or Additional Protocol II amounting to: violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment […] outrages upon personal dignity (paras. 2252–54). In the Ntagerura et al. case (25 February 2004, para. 766), the ICTR Trial Chamber recalled that with regard to war crimes, the existence of a non-international armed conflict on the territory of the concerned State must be proven.

In the*Rutanga case (6 December 1999), the ICTR Trial Chamber considered that in times of armed conflict, the protection afforded to individuals by IHL extends throughout the territory of the state where the hostilities are occurring. Therefore, it is not limited to the “war front” or to the “narrow geographical context of the actual theatre of combat operations” (paras. 182–83). This was confirmed by the ICTR Trial Chamber in other cases: Akayesu case (2 September 1998, para. 635), Kayishema and Ruzindana case (21 May 1999, paras. 182–83), Musema case (27 January 2000, para. 284) and Semanza case (15 May 2003, para. 367).

**

Required from Indirect Perpetrators of Such Crimes In the Boškosi & Tarčulovski case (19 May 2010, paras. 67–68), the ICTY Appeals Chamber held that the proof of the specific intent (*mens rea ) was necessary to convict an accused for planning, instigating, and ordering crimes included under Common Article 3, namely, war crimes.

**

1. Definition

Crimes against humanity “may be broadly broken down into five essential elements, namely: (i) the act must be inhuman in nature and character, causing great suffering, or serious injury to body or to mental or physical health; (ii) the act must be committed as part of a widespread or systematic attack; (iii) the act must be committed against members of the civilian population; (iv) the act must be committed on one or more discriminatory grounds, namely, national, political, ethnic, racial or religious grounds; (v) the perpetrator must be aware of the link between his/her conduct and the widespread or systematic attack” (ICTR,*Akayesu case, 2 September 1998, para. 578). See also, ICTR: Bagosora et al. case ( 18 December 2008, para. 2165), Seromba case (13 December 2006, para. 354), Zigiranyirazo c ase (18 December 2008, para. 430), Bikindi case (2 December 2008, para. 428), Nzabirinda c ase (23 February 2007, para. 20), and Nchamihigo case (12 November 2008, para. 340).

“Discrimination” implies that the discriminatory intent is not required for acts other than persecution (ICTR,*Zigiranyirazo case, 18 December 2008, para. 430).

Tribunals also spelled out the meaning of the term “widespread or systematic,” specifying that the general requirements for a crime against humanity should be read as distinctive elements. “Widespread” refers to the large scale of the attack, whereas “systematic” describes its organized nature as opposed to random or unrelated acts (ICTR,*Rukundo case, 27 February 2009, para. 578).

“Widespread” means a massive, frequent, large-scale action, carried out collectively with considerable seriousness, and directed against a multiplicity of victims. See Trial Chamber I of the ICTR:*Rutaganda case (6 December 1999, para. 69), Musema case (27 January 2000, para. 204), Bagilishema case (7 June 2001, para. 77), and Kayishema and Ruzindana case (21 May 1999, para. 123). See also Trial Chamber I of the ICTY: Kordić and Čerkez case (26 February 2001, para. 179), Blaškić case (3 March 2000, para. 206), and Blagojevič and Jokič case (9 May 2007, paras. 101–102). However, the numeric threshold is not a decisive element. In the Krajišnik case (17 March 2009, para. 309), the ICTY Appeals Chamber recalled that “except for extermination it is not necessary that a crime be carried out against a multiplicity of victims to constitute a crime against humanity: an act directed against a limited number of victims can constitute a crime against humanity, provided it forms part of a widespread systematic attack directed against a civilian population.”

“Systematic” is defined as thoroughly organized action, following a regular pattern on the basis of a common policy and involving substantial public or private resources. There is no requirement that this policy must be adopted formally as the policy of a state. There must, however, be some kind of preconceived plan or policy. See Trial Chamber I of the ICTR:*Akayesu case (2 September 1998, para. 580), Rutaganda case (6 December 1999, para. 69), and Musema case (27 January 2000, para. 204). See also Trial Chamber I of the ICTY, Tuta and Stela case (31 March 2003, para. 236), and Appeals Chamber of the ICTY, Foča case (21 June 2002, para. 94). In the Kayishema and Ruzindana case (21 May 1999), the Trial Chamber I of the ICTR considered that:

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This is consistent with other international court decisions ruling that for crimes against humanity, “the accused must have acted with knowledge of the broader context of the attack, and with knowledge that his act formed part of the widespread and systematic attack against the civilian population” (ICTR,*Gacumbitsi case, 7 July 2006, para. 86). See also ICTR: Ruggiu case (1 June 2000, paras. 19–20), Bagilishema case (7 June 2001, para. 94), Nzabirinda case (23 February 2007, para. 24), Bagosora et al. case (18 December 2008, para. 2166), and Rukundo case (27 February 2009, para. 578); as well as ICTY: Tadić case (15 July 1999, para. 271), Brčko case (14 December 1999, para. 56), Blaškić case (3 March 2000, paras. 244, 247), Foča case (22 February 2001, para. 410) and (12 June 2002, para. 102), and Kordić and Čerkez case (26 February 2001, para. 185).

In the*Katanga et al. case ( Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui , 6 July 2007, paras. 32–35), the ICC Pre-Trial Chamber I held that the contextual element spelled out in Article 7 of the Rome Statute, namely the fact that a crime against humanity implies a “widespread or systematic attack,” is an indispensable element of the definition. The Chamber based its reasoning on the jurisprudence of the ad hoc International Criminal Tribunals. See also the Bemba case (10 June 2008, paras. 32–36). Besides, the element of premeditation is essential in the definition; the notion of “widespread or systematic attack” implies that the attack shall be thoroughly organized, follow a regular pattern of crimes and be conducted in furtherance of a common policy involving public or private resources (ICC, Katanga et al. case, 30 September 2008, paras. 394–96, 400). Still on this notion of “widespread and systematic attack,” the Chamber also found that there was no need to prove the existence of both elements when there is sufficient evidence of one (para. 412).

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“Under Article 5 of the Statute, persons hors de combat may be victims of an act amounting to a crime against humanity, provided that all other necessary conditions are met, in particular that the act in question is part of a widespread or systematic attack against any civilian population” (ICTY,*Martić case, 8 October 2008, paras. 314–14) . See also Milošević case (12 November 2009, para. 58). Therefore, even if civilians must be the primary objects of the attack in order to make it a crime, presence of non-civilians in the targeted population does not change the civilian character of the population or the nature of the crime: ICTR, Nzabirinda case (23 February 2007, para. 22), Semanza case (15 May 2003, para. 330), and Seromba case (13 December 2006, para. 358). It is not a requirement that crimes against humanity be directed against the entire population to be considered as such: ICTR, Bisengimana case (13 April 2006, paras. 49 and 50).

Such a crime must be part of a widespread or systematic attack against any civilian population. Regarding the latter requirement, the Chamber recalled that: (1) the civilian population must be the primary object of the attack; (2) factors relevant to determining whether the attack was so directed include the means and methods used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, and the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war; and (3) that the civilian population need only be predominantly civilian: ICTY,*Mrkšić and Šljivančanin case (27 September 2007, paras. 429 and 440).

In line with the ICTY, the ICC Pre-Trial Chamber I held in the*Katanga et al. case (30 September 2008, para. 399) that the phrase “any civilian population” means regardless of their nationality, ethnicity, or other distinctive features, and that civilians of the same nationality as the one of the perpetrators are included in the definition.

For Additional Information:

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Bassiouni, Cherif.*Crimes against Humanity in International Criminal Law . The Hague: Kluwer Law International, 1999.

Brouwer, Anne-Marie de.*Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR . Antwerp: Intersentia, 2005.

Byron, Christine.*War Crimes and Crimes against Humanity in the Rome Statute of the International Criminal Court . Manchester: Manchester University Press, 2009.

Dinstein, Yoram.*The Conduct of Hostilities under the Law of International Armed Conflict . Cambridge: Cambridge University Press, 2004, esp. chap. 9.

Dörmann, Knut, ed.*Elements of War Crimes under the Rome Statute of the International Criminal Court—Sources and Commentary . Cambridge: ICRC and Cambridge University Press, 2003.

Dworkin, Anthony, Roy Gutman, and David Rieff.*Crimes of War 2.0: What the Public Should Know . Rev. ed. New York: W. W. Norton, 2007.

Goldstone, Richard J. “Bringing War Criminals to Justice during an Ongoing War.” In*Hard Choices: Moral Dilemmas in Humanitarian Intervention , edited by Jonathan Moore, 195–228. Lanham, MD: Rowman & Littlefield, 1998.

Henckaerts, Jean-Marie, and Louise Doswald-Beck, eds.*Customary International Law. Vol. 1, The Rules . Cambridge: Cambridge University Press, 2005, part 6, chap. 44. May, Larry. Crimes against Humanity: A Normative Account. Cambridge: Cambridge University Press, 2005.

McGrath, Raymond. “Problems of Investigations into War Crimes and Crimes against Humanity During and after Ethnic Conflict.” In*Post Conflict Justice , edited by Cherif Bassiouni, 893–909. Ardsley, NY: Transnational, 2002.

Meron, Theodor. “War Crimes Law Comes of Age.”*American Journal of International Law , Vol. 92 (July1998): 462–68.

Mettraux, Guénaël.*International Crimes and the Ad Hoc Tribunals . Oxford: Oxford University Press, 2006.

Simpson, Gerry. Law,*War and Crime: War Crimes Trials and the Reinvention of International Law . Cambridge: Polity Press, 2007.

Van Sliedregt, E.*The Criminal Responsibility of Individuals for Violations of International Humanitarian Law . The Hague: T.M.C. Asser Press, 2003.

Wagner, Natalie. “The Development of the Grave Breaches Regime and of Individual Criminal Responsibility by the International Criminal Tribunal for the Former Yugoslavia.” I*nternational Review of the Red Cross , Vol. 85, No. 850 (2003): 351–85.

Zalaquett, José. “Moral Reconstruction in the Wake of Human Rights Violations and War Crimes.” In*Hard Choices: Moral Dilemmas in Humanitarian Intervention , edited by Jonathan Moore, 211–28. Lanham, MD: Rowman & Littlefield, 1998.