Misplaced Pages

#102897

98-734: In the late 19th century, the legal doctrine of command responsibility was codified in the Hague Conventions of 1899 and 1907 , which are partly based upon the Lieber Code (General Orders No. 100, 24 April 1863), military law that legally allowed the Union Army to fight in the regular and the irregular modes of warfare deployed by the Confederacy during the American Civil War (1861–1865). As international law ,

196-524: A war of aggression , or a war in violation of international treaties, agreements, or assurances. Because the definition of a state of "war" may be debated, the term "war crime" itself has seen different usage under different systems of international and military law. It has some degree of application outside of what some may consider being a state of "war", but in areas where conflicts persist enough to constitute social instability. The legalities of war have sometimes been accused of containing favoritism toward

294-758: A commander to control the acts of members of his command by permitting them to commit war crimes” in the Philippine Islands, where his soldiers committed atrocities against Allied prisoners of war, Filipino guerrillas, and civilians during the Second World War. The International Military Tribunal for the Far East who charged, tried, and judged Gen. Yamashita guilty of war crimes established the Yamashita standard of criminal liability, whereby if "vengeful actions are widespread offenses, and there

392-456: A commander to control the acts of members of his command, by permitting them to commit war crimes". In the 20th century, in the early 1970s, the Medina standard expanded the U.S. Code to include the criminal liability of American military officers for the war crimes committed by their subordinates, as are the war-criminal military officers of an enemy power. The Medina standard was established in

490-483: A commune in which many Tutsis were killed, raped, tortured, and otherwise persecuted. Another case prosecuted persons in charge of a radio station and a newspaper that incited and then encouraged the Rwandan genocide. The defendants were charged with genocide, incitement to genocide , and crimes against humanity for their positions of control and command in the " hate media ", although they physically had not committed

588-523: A duty to prevent" criminal behaviour by a military force. Despite having argued that he had obeyed superior orders , von Hagenbach was convicted, condemned to death , and beheaded. The Hague Conventions were international treaties negotiated at the First and Second Peace Conferences at The Hague , Netherlands, in 1899 and 1907, respectively, and were, along with the Geneva Conventions, among

686-451: A former president of the U.S., George W. Bush had lost his head-of-state immunity and that international law obligated the U.S. government to start criminal proceedings against the government officials and military officers who violated the U.N. Convention Against Torture. In support of Nowak's statement, the jurist Dietmar Herz explained that former president George W. Bush is criminally responsible for adopting torture-as-interrogation, per

784-658: A legal basis and framework for the conduct of war under international law. Every single member state of the United Nations has currently ratified the conventions, which are universally accepted as customary international law , applicable to every situation of armed conflict in the world. The Additional Protocols to the Geneva Conventions adopted in 1977 containing the most pertinent, detailed and comprehensive protections of international humanitarian law for persons and objects in modern warfare are still not ratified by several states continuously engaged in armed conflicts, namely

882-480: A military objective are governed under principles such as of proportionality and military necessity and can be permissible. Military necessity "permits the destruction of life of ... persons whose destruction is incidentally unavoidable by the armed conflicts of the war; ... it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by

980-521: A nature, which at the least, would put him on notice of the risk of ... offences by indicating the need for additional investigation in order to ascertain whether ... crimes were committed or were about to be committed by his subordinates." In The Prosecutor v. Blaškić ("the Blaškić case") this view was corroborated. However, it differed regarding mens rea required by AP I. The Blaškić Trial Chamber concluded that "had reason to know", as defined by

1078-474: A plan or policy or as part of a large-scale commission of such crimes". To date, the present and former heads of state and heads of government that have been charged with war crimes include: War crimes are serious violations of the rules of customary and treaty law concerning international humanitarian law , criminal offenses for which there is individual responsibility. Colloquial definitions of war crime include violations of established protections of

SECTION 10

#1732791307103

1176-484: A private military company – raises the legal matter of command responsibility for the war crimes and crimes against humanity committed by mercenaries ostensibly not subject to the military law of any belligerent party. Political scientists and military jurists said that when the operational conduct of mercenary soldiers is indistinguishable from the operational conduct of the combatant soldiers (uniform, weapons, tactics, missions, etc.) that practical likeness renders

1274-502: A process for binding international arbitration, but the provision was vetoed by a few countries, led by Germany . The First Hague Conference came from a proposal on 24 August 1898 by Russian Tsar Nicholas II . Nicholas and Count Mikhail Nikolayevich Muravyov , his foreign minister , were instrumental in initiating the conference. The conference opened on 18 May 1899, the Tsar's birthday. The treaties, declarations, and final act of

1372-713: A war, his soldiers act in accordance with the customary laws of war, by limiting their operational actions to the military aims of the war. In 1474, in the Holy Roman Empire (962–1806), the trial of the Burgundian knight Peter von Hagenbach was the first international recognition of the legal doctrine of command responsibility, of a commander's legal obligation to ensure that his soldiers act in accordance with customary law in prosecuting their war. The tribunal tried Hagenbach for atrocities committed by his soldiers during their military occupation of Breisach , and

1470-529: Is a legitimate ruse of war , though fighting in combat or assassinating individuals behind enemy lines while so disguised is not, as it constitutes unlawful perfidy . Attacking enemy troops while they are being deployed by way of a parachute is not a war crime. Protocol I, Article 42 of the Geneva Conventions explicitly forbids attacking parachutists who eject from disabled aircraft and surrendering parachutists once landed. Article 30 of

1568-419: Is called scorched earth policy for the military purpose of denying the use of ground for the enemy. The German troops retreating from Finnish Lapland believed Finland would be occupied by Soviet troops and destroyed many settlements while retreating to Norway under the command of Rendulic. He overestimated the perceived risk but argued that Hague IV authorized the destruction because it was necessary to war. He

1666-428: Is legally responsible for the war crimes committed by his subordinates, by failing to act and prevent such crimes; and for failing to punish war-criminal subordinates. In late 1945, the war-crimes trial of General Tomoyuki Yamashita , Japanese Fourteenth Area Army, was the first instance of a commanding officer formally charged with a criminal act of omission by “unlawfully disregarding and failing to discharge his duty as

1764-503: Is no effective attempt by a commander to discover and control the criminal acts, [then] such a commander may be held responsible, even criminally liable". In 1946, with the Application of Yamashita , the U.S. Supreme Court resolved the ambiguous wording of that legal definition of command responsibility, which did not establish the commander's required degree of knowledge of the war crimes committed by his subordinates. At Nuremberg, in

1862-472: Is part of the command structure who orders any attempt to committing mass killings including genocide or ethnic cleansing , the granting of no quarter despite surrender, the conscription of children in the military and flouting the legal distinctions of proportionality and military necessity . The formal concept of war crimes emerged from the codification of the customary international law that applied to warfare between sovereign states , such as

1960-491: Is stipulated in Article 43, Section III of Convention IV: The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. Furthermore, command responsibility is stipulated in Article 19 of Convention X,

2058-569: Is unlawful. For aerial strikes, pilots generally have to rely on information supplied by external sources (headquarters, ground troops) that a specific position is in fact a military target. In the case of former Yugoslavia , NATO pilots hit a civilian object (the Chinese embassy in Belgrade ) that was of no military significance, but the pilots had no idea of determining it aside from their orders. The committee ruled that "the aircrew involved in

SECTION 20

#1732791307103

2156-482: The High Command Trial , the U.S. military tribunal ruled that in order for a commanding officer to be criminally liable for the war crimes of his subordinates "there must be a personal dereliction", which "can only occur where the act is directly traceable to him, or where his failure to properly supervise his subordinates constitutes criminal negligence on his part" by way of "a wanton, immoral disregard of

2254-531: The American Civil War . The Lieber Code was the first official comprehensive codified law that set out regulations for behavior in times of martial law ; protection of civilians and civilian property and punishment of transgression ; deserters , prisoners of war , hostages , and pillaging ; partisans ; spies ; truces and prisoner exchange ; parole of former rebel troops; the conditions of any armistice , and respect for human life; assassination and murder of soldiers or citizens in hostile territory; and

2352-660: The Chemical Weapons Convention (1993). Many of the rules laid down at the Hague Conventions were violated in World War I. The German invasion of neutral Luxembourg and Belgium in August 1914 in order to outflank France, for instance, was a violation of Convention (V) of 1907, which states that belligerents must not violate neutral territory and move troops across said territory. Poison gas

2450-508: The Geneva Conventions (1949) protecting prisoners of war, U.S. Attorney General Alberto Gonzáles said that classifying al Qaeda POWs as unlawful combatants "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act of 1996 ". In the case of Hamdan v. Rumsfeld , the U.S. Supreme Court overruled Attorney General Gonzáles' illegal reclassification of POWs as detainees; ruled that Common Article 3 of

2548-550: The International Criminal Court to hear. In "History Will Not Absolve Us: Leaked Red Cross Report Sets up Bush Team for International War-crimes Trial" (2007), Nat Hentoff said that the report Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality (2007), by Human Rights First and Physicians for Social Responsibility , would be evidence of U.S. war crimes at a war-crimes trial of

2646-984: The Laws and Customs of War on Land emphasizes command responsibility in three places: (i) Section I: On Belligerents: Chapter I: The Qualifications of Belligerents; (ii) Section III: Military Authority over the Territory of the Hostile State; and (iii) the Adaptation to Maritime War of the Principles of the Geneva Convention deal specifically with command responsibility. To wit, Article 1 of Section I of Convention IV (Hague 1907) stipulates that: The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling these conditions: Moreover, command responsibility

2744-678: The Lieber Code (1863) of the Union Army in the American Civil War and the Hague Conventions of 1899 and 1907 for international war. In the aftermath of the Second World War, the war-crime trials of the leaders of the Axis powers established the Nuremberg principles of law, such as that international criminal law defines what is a war crime. In 1949, the Geneva Conventions legally defined new war crimes and established that states could exercise universal jurisdiction over war criminals. In

2842-880: The Nuremberg Trials and Tokyo Trials have been convened. Recent examples are the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda , which were established by the UN Security Council acting under Chapter VIII of the UN Charter . Under the Nuremberg Principles , war crimes are different from crimes against peace . Crimes against peace include planning, preparing, initiating, or waging

2940-566: The Nuremberg trials (1945–1946). Abiding by that legal precedent, the U.S. Supreme Court allowed the U.S. prosecution of the war crimes case against Imperial Japanese Army General Tomoyuki Yamashita for the atrocities committed by his soldiers in the Philippine Islands, in the Pacific Theatre (1941–1945) of the Second World War. The International Military Tribunal for the Far East charged, tried, and judged Gen. Yamashita for "unlawfully disregarding, and failing to discharge, his duty as

3038-563: The U.N. Security Council adopted Resolution 1820 , which noted that "rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide"; see also wartime sexual violence . In 2016, the International Criminal Court convicted someone of sexual violence for the first time; specifically, they added rape to a war crimes conviction of Congo Vice President Jean-Pierre Bemba Gombo . War crimes also included deliberate attacks on citizens and property of neutral states , such as

Command responsibility - Misplaced Pages Continue

3136-811: The War on Terror would expose the officers of the George W. Bush administration (2001–2008) to legal liability for the war crimes and for the crimes against humanity committed by their military subordinates in Iraq and Afghanistan. Consequent to the 11 September 2001 terrorist attacks, the U.S. government deployed legalistic arguments to justify torture by way of prisoner abuse , arguing that captured al Qaeda fighters are unlawful combatants – not soldiers – and thus could be subjected to enhanced interrogation methods , because under U.S. law they were classified as detainees and not as prisoners of war (POWs). To justify flouting

3234-591: The court martial of U.S. Army Captain Ernest Medina in 1971 for not exercising his command authority as company commander, by not acting to halt the My Lai Massacre (16 March 1968) committed by his soldiers during the Vietnam War (1955–1975). In The Art of War (5th century BC ), Sun Tzu said that the duties and responsibilities of a commanding officer were to ensure that in prosecuting

3332-587: The laws of war , but also include failures to adhere to norms of procedure and rules of battle, such as attacking those displaying a peaceful flag of truce , or using that same flag as a ruse to mount an attack on enemy troops. The use of chemical and biological weapons in warfare are also prohibited by numerous chemical arms control agreements and the Biological Weapons Convention . Wearing enemy uniforms or civilian clothes to infiltrate enemy lines for espionage or sabotage missions

3430-420: The subsequent Nuremberg trials (1946–1949), explicitly discussed the requisite standard of mens rea (a guilty mind) for war crimes to occur, and determined that a lesser level of knowledge is sufficient for the commander to be complicit in the war crimes of his subordinates. Concerning the superior responsibility inherent to civilian control of the military , civil and military jurists said that prosecuting

3528-669: The war crimes and crimes against humanity committed by his subordinate officers, sergeants, and soldiers; and further stipulated the duties and rights of the individual soldier of the Union Army to not commit war crimes – such as the summary execution of Confederate POWs, irregular combatants , and enemy civilians; thus Article 71, Section III of the Lieber Code stipulates that: Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to

3626-761: The "Lieber Code." A small number of German military personnel of the First World War were tried in 1921 by the German Supreme Court for alleged war crimes. The modern concept of war crime was further developed under the auspices of the Nuremberg trials based on the definition in the London Charter that was published on August 8, 1945 (see Nuremberg principles ). Along with war crimes the charter also defined crimes against peace and crimes against humanity , which are often committed during wars and in concert with war crimes. Also known as

3724-698: The 1907 Hague Convention IV – The Laws and Customs of War on Land explicitly forbids belligerents to punish enemy spies without previous trial . The rule of war, also known as the Law of Armed Conflict , permits belligerents to engage in combat. A war crime occurs when superfluous injury or unnecessary suffering is inflicted upon an enemy. War crimes also include such acts as mistreatment of prisoners of war or civilians . War crimes are sometimes part of instances of mass murder and genocide though these crimes are more broadly covered under international humanitarian law described as crimes against humanity . In 2008,

3822-634: The Adaptation to Maritime War of the Principles of the Geneva Convention: The commanders in chief of the belligerent fleets must arrange for the details of carrying out the preceding articles, as well as for cases not covered thereby, in accordance with the instructions of their respective Governments and in conformity with the general principles of the present Convention. Since the 1990s, national governments hire mercenary soldiers to replace regular army soldiers in fighting wars, which replacement of tactical combat personnel ( infantry ) – by

3920-692: The Army of the United States, or is an enemy captured after having committed his misdeed. The Hague Conventions of 1899 and 1907 are the international legal foundations for the conduct of war among civilized nations, especially the legal doctrine of command responsibility for war crimes and crimes against humanity. The Hague Convention of 1907 updated the codifications of the Hague Convention of 1899, thus, in Convention IV (18 October 1907),

4018-695: The Blitz as well as the indiscriminate attacks on Allied cities with V-1 flying bombs and V-2 rockets , nor the Japanese for the aerial attacks on crowded Chinese cities. Controversy arose when the Allies re-designated German POWs (under the protection of the 1929 Geneva Convention on Prisoners of War ) as Disarmed Enemy Forces (allegedly unprotected by the 1929 Geneva Convention on Prisoners of War), many of which were then used for forced labor such as clearing minefields . By December 1945, six months after

Command responsibility - Misplaced Pages Continue

4116-825: The Field (Lieber Code) was written by Franz Lieber , a German lawyer , political philosopher , and veteran of the Napoleonic Wars . Lincoln made the Code military law for all wartime conduct of the Union Army . It defined command responsibility for war crimes and crimes against humanity as well as stated the military responsibilities of the Union soldier fighting the Confederate States of America . The Geneva Conventions are four related treaties adopted and continuously expanded from 1864 to 1949 that represent

4214-544: The Geneva Convention and the statutes of the International Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC) stipulate that the prevention and prosecution of war crimes and of crimes against humanity are legal responsibilities of a commanding officer. In the aftermath of the Second World War, the Nuremberg trials (20 November 1945 – 1 October 1946) resulted from

4312-715: The Geneva Conventions applies to the Al Qaeda POWs at the Guantanamo Bay prison camp; and ruled that the Guantanamo military commission who tried, judged, and sentenced al Qaeda POWs was an illegitimate military tribunal, because the U.S. Congress did not establish it. Moreover, the Human Rights Watch organization said that, given his superior responsibility of government office, U.S. Secretary of Defense Donald Rumsfeld would be criminally liable for

4410-489: The Government of Armies of the United States in the Field (24 April 1863) – the contemporary updating of the 18th-century military law of the 1806 Articles of War that allowed the Union Army to lawfully combat the regular and irregular modes of warfare (partisans, guerrillas, spies) deployed by the Confederacy in the mid-19th century. As U.S. military law, the Lieber Code stipulated a commander's legal responsibility for

4508-773: The Hague Conventions of 1899 and 1907 continue to stand as symbols of the need for restrictions on war and the desirability of avoiding it altogether. Since 2000, Convention (I) of 1907 on the Pacific Settlement of International Disputes has been ratified by 20 additional states. War crime A war crime is a violation of the laws of war that gives rise to individual criminal responsibility for actions by combatants in action, such as intentionally killing civilians or intentionally killing prisoners of war , torture , taking hostages , unnecessarily destroying civilian property , deception by perfidy , wartime sexual violence , pillaging , and for any individual that

4606-457: The Hague conferences as a nucleus of a future international federation that was to meet at regular intervals to administer justice and develop international law procedures for the peaceful settlement of disputes, asserting that "a definite political union of the states of the world has been created with the First and Second Conferences". After World War II , the judges of the military tribunal of

4704-593: The ICTY Statute, also imposes a stricter "should have known" standard of mens rea . The conflicting views of both cases were addressed by the Appeals Chambers in Čelebići and in a separate decision in Blaškić. Both rulings hold that some information of unlawful acts by subordinates must be available to the commander following which he did not, or inadequately, discipline the perpetrator. The concept of command responsibility has developed significantly in

4802-482: The Japanese attack on Pearl Harbor . As the attack on Pearl Harbor happened while the U.S. and Japan were at peace and without a just cause for self-defense, the attack was declared by the Tokyo Trials to go beyond justification of military necessity and therefore constituted a war crime. War crimes are significant in international humanitarian law because it is an area where international tribunals such as

4900-523: The Lieber Code. Much of the regulations in the Hague Conventions borrowed heavily from the Lieber Code. The Hague Convention of 1899 was notably attended by the Korean Empire as an independent country, prior to its loss of independence in 1905 that prevented it from attending the Hague Convention of 1907. Both conferences included negotiations concerning disarmament , the laws of war and war crimes . A major effort in both conferences

4998-518: The MCA retroactively rewrote the War Crimes Act of 1996 , which defined war crime as any serious violation of the Geneva Convention, which left the POW no means of legal defense. In "Court 'can envisage' Blair Prosecution" (2007), the jurist Luis Moreno-Ocampo (ICC, 2003–2012) offered to begin a war-crimes enquiry for a war-crimes trial of British Prime Minister Tony Blair and U.S. President George W. Bush, for

SECTION 50

#1732791307103

5096-736: The Tokyo Trial, the Tokyo War Crimes Tribunal or simply as the Tribunal, it was convened on May 3, 1946, to try the leaders of the Empire of Japan for three types of crimes: "Class A" (crimes against peace), "Class B" (war crimes), and "Class C" (crimes against humanity), committed during World War II . On July 1, 2002, the International Criminal Court (ICC), a treaty-based court located in The Hague , came into being for

5194-544: The Trial of German Major War Criminals at Nuremberg Trials found that by 1939, the rules laid down in the 1907 Hague Convention IV – Laws and Customs of War on Land were recognized by all civilized nations and were regarded as declaratory of the laws and customs of war. Under this post-war decision, a country did not have to have ratified the 1907 Hague Convention on Land Warfare in order to be bound by them. Although their contents have largely been superseded by other treaties,

5292-468: The U.S. invasion of Iraq (2003) was a crime against peace that breached international law, and so exposed the superior responsibility of U.S. President George W. Bush for unilaterally launching an aggressive war . In November 2006, the Federal Republic of Germany invoked universal jurisdiction and began legal proceedings against U.S. defense secretary Rumsfeld, U.S. Attorney General Gonzáles,

5390-399: The United States, Israel, India, Pakistan, Iraq, Iran, and others. Accordingly, states retain different codes and values about wartime conduct. Some signatories have routinely violated the Geneva Conventions in a way that either uses the ambiguities of law or political maneuvering to sidestep the laws' formalities and principles. The first three conventions have been revised and expanded, with

5488-632: The War on Terror. Moreover, by the end of the Bush administration in 2008, the international community said that the United Nations Convention Against Torture (1985) obligated the U.S. government to prosecute the civilian and military officers who ordered and realized the torture of POWs captured during the War on Terror. The United Nations special rapporteur on torture, Manfred Nowak (in office 2004–2010), said that, as

5586-485: The actions of his subordinates amounting to [the commander's] acquiescence" to the war crimes. At Nuremberg, in the trial of the Hostages Case , the judgements of the U.S. military tribunal seemed to limit the circumstances wherein a commanding officer has a duty to investigate, document, and know in full of all instances of atrocity and war crime, especially if the commander already possessed information regarding

5684-505: The acts. Hague Conventions of 1899 and 1907 The Hague Conventions of 1899 and 1907 are a series of international treaties and declarations negotiated at two international peace conferences at The Hague in the Netherlands . Along with the Geneva Conventions , the Hague Conventions were among the first formal statements of the laws of war and war crimes in the body of secular international law . A third conference

5782-478: The attack should not be assigned any responsibility for the fact they were given the wrong target and that it is inappropriate to attempt to assign criminal responsibility for the incident to senior leaders because they were provided with wrong information by officials of another agency". The report also notes that "Much of the material submitted to the OTP consisted of reports that civilians had been killed, often inviting

5880-561: The breach. Therefore, in the execution of military operations, Article 86(2) obligates a commanding officer to "prevent, and, where necessary, to suppress and report to competent authorities" any violation of the Geneva Conventions and of Additional Protocol I. In discussions of command responsibility the term command is defined as There are four structures of command authority: International law developed two types of de jure commanders: The indicators (discriminating marks) of command authority are: Moreover, Additional Protocol I to

5978-478: The collection of debts, rules of war, and the rights and obligations of neutrals. The treaties, declarations, and final act of the Second Conference were signed on 18 October 1907; they entered into force on 26 January 1910. The 1907 Convention consists of thirteen treaties—of which twelve were ratified and entered into force—and one declaration: At the same time an International socialist Congress

SECTION 60

#1732791307103

6076-404: The common opinion among jurists that the severity of Nazi war crimes and crimes against humanity (e.g. the Holocaust ) required prosecution, judgement, and resolution by an International Military Tribunal authorized by the Nuremberg Charter (8 August 1945), which determined the procedures and legal bases to prosecute military officers, civil officials, and civilian people who committed: Legally,

6174-418: The conclusion to be drawn that crimes had therefore been committed. Collateral casualties to civilians and collateral damage to civilian objects can occur for a variety of reasons." The Rendulic Rule is a standard by which commanders are judged. German General Lothar Rendulic was charged for ordering extensive destruction of civilian buildings and lands while retreating from a suspected enemy attack in what

6272-486: The conference were signed on 29 July of that year, and they entered into force on 4 September 1900. What is referred to as the Hague Convention of 1899 consisted of three main treaties and three additional declarations: The Second Hague Conference , in 1907, resulted in conventions containing only few major advancements from the 1899 Convention. However, the meeting of major powers did prefigure later 20th-century attempts at international cooperation. The second conference

6370-444: The course of fighting. The United Nations defines war crimes as described in Article 8 of the Rome statute , the treaty that established the International Criminal Court: Under the law of armed conflict (LOAC), the death of non-combatants is not necessarily a violation; there are many things to take into account. Civilians cannot be made the object of an attack, but the death/injury of civilians while conducting an attack on

6468-505: The defense of the principle of legal equality of nations. The British delegation included Sir Edward Fry , Sir Ernest Satow , the 11th Lord Reay (Donald James Mackay) and Sir Henry Howard as delegates, and Eyre Crowe as a technical delegate. The Russian delegation was led by Friedrich Martens . The Uruguayan delegation was led by José Batlle y Ordóñez , a defender of the idea of compulsory arbitration. With Louis Renault and Léon Bourgeois , Paul Henri d'Estournelles de Constant

6566-406: The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from ... responsibility ... if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or about to commit such a breach, and if they did not take all feasible measures within their power to prevent or repress

6664-418: The first formal statements of the laws of war and war crimes in the nascent body of secular international law . The Lieber Code was written early in the American Civil War and President Abraham Lincoln issued as General Order 100 on April 24, 1863, just months after the military executions at Mankato, Minnesota . General Order 100, Instructions for the Government of the Armies of the United States in

6762-407: The fourth one added in 1949: Two Additional Protocols were adopted in 1977 with the third one added in 2005, completing and updating the Geneva Conventions: Just after WWI, world governments started to try and systematically create a code for how war crimes would be defined. Their first outline of a law was " Instructions for the Government of Armies of the United States in the Field" —also known as

6860-419: The jurisdiction of the International Military Tribunal at Nuremberg applied to all "leaders, organisers, instigators and accomplices" who participated in planning and committing crimes against humanity and war crimes. The ICTY statute article 7 (3) establishes that the fact that crimes "were committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that

6958-506: The jurisprudence of the ICTY. One of the most recent judgements that extensively deals with the subject is the Halilović judgement of 16 November 2005 (para. 22–100). United Nations Security Council Resolution 955 (1994) set up an international criminal tribunal to judge people responsible for the Rwandan genocide and other serious violations of international law in Rwanda , or by Rwandan citizens in nearby states, between 1 January and 31 December 1994; additional later resolutions expanded

7056-501: The jurist John Yoo , and CIA chief George Tenet , for their legal liability for U.S. war crimes . Moreover, in legal practice, the Military Commissions Act of 2006 (MCA) functions as an amnesty law for the Bush administration to flout their superior responsibility and thus their legal liability for war crimes committed when prosecuting the War on Terror , because, by denying POWs the right of habeas corpus ,

7154-409: The late 20th century and early 21st century, international courts extrapolated and defined additional categories of war crimes applicable to a civil war . In 1474, the first trial for a war crime was that of Peter von Hagenbach , realised by an ad hoc tribunal of the Holy Roman Empire , for his command responsibility for the actions of his soldiers, because "he, as a knight, was deemed to have

7252-569: The legal doctrine and the term command responsibility were applied and used in the Leipzig war crimes trials (1921) that included the trial of Captain Emil Müller for prisoner abuse committed by his soldiers during the First World War (1914–1918). In the 20th century, in the late 1940s, the Yamashita standard derived from the incorporation to the U.S. Code of the developments of the legal doctrine of command responsibility presented in

7350-505: The legal doctrine of superior responsibility stipulated in of the international laws of war and the U.S. Code. The Additional Protocol I (AP I, 1977) to the Geneva Conventions of 1949 was the first comprehensive codification of the legal doctrine of command responsibility. In the Additional Protocol No. I, the terms of Article 86(2) "explicitly address the knowledge factor of command responsibility", and stipulate that:

7448-406: The legal question of whether the expected incidental harm is excessive may be very subjective. For this reason, States have chosen to apply a "clearly excessive" standard for determining whether a criminal violation has occurred. When there is no justification for military action, such as civilians being made the object of attack, a proportionality analysis is unnecessary to conclude that the attack

7546-504: The limitation of armaments, but these efforts were defeated by the other powers, led by Germany, which feared a British attempt to stop the growth of the German fleet. As Britain had the world's largest navy , limits on naval expansion would preserve that dominant position. Germany also rejected proposals for compulsory arbitration. However, the conference did enlarge the machinery for voluntary arbitration and established conventions regulating

7644-401: The mercenary (militiaman or irregular combatant) into a legitimate agent of the belligerent state, who thus is subject to the legal liabilities of command responsibility codified in the Hague and in the Geneva Conventions . As a legal doctrine of military law, command responsibility stipulates that an act of omission is a mode of individual criminal liability, whereby the commanding officer

7742-489: The necessities of war." For example, conducting an operation on an ammunition depot or a terrorist training camp would not be prohibited because a farmer is plowing a field in the area; the farmer is not the object of attack and the operations would adhere to proportionality and military necessity. On the other hand, an extraordinary military advantage would be necessary to justify an operation posing risks of collateral death or injury to thousands of civilians. In "grayer" cases

7840-539: The prosecution of war crimes committed on or after that date. Several nations, most notably the United States, China, Russia, and Israel, have criticized the court. The United States still participates as an observer. Article 12 of the Rome Statute provides jurisdiction over the citizens of non-contracting states if they are accused of committing crimes in the territory of one of the state parties. The ICC only has jurisdiction over these crimes when they are "part of

7938-442: The scope and timeline of the tribunal. The tribunal has jurisdiction over genocide , crimes against humanity , and war crimes . The judgement against Jean-Paul Akayesu established rape as a war crime. Rape was placed in line with "other acts of serious bodily and mental harm" rather than the historical view of rape as "a trophy of war". Akayesu was held responsible for his actions and non-actions as mayor and police commander of

8036-409: The status of individuals engaged in a state of civil war against the government. As such, the code was widely regarded as the best summary of the first customary laws and customs of war in the 19th century. It was welcomed and adopted by military establishments of other nations. The 1874 Brussels Declaration, which was never adopted by all major nations, listed 56 articles that drew inspiration from

8134-423: The subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators." The Prosecutor v. Delalić et al. ("the Čelebići case") first considered the scope of command responsibility by concluding that "had reason to know" (article 7(3)) means that a commander must have "had in his possession information of

8232-507: The term command responsibility did not exist in the 15th century, the tribunal did presume he had a legal responsibility for the war crimes of his soldiers, thus Hagenbach's trial was the first war crimes trial based upon the legal doctrine of command responsibility. During the American Civil War (1861–1865), the legal doctrine of command responsibility was codified in the Lieber Code – General Orders No. 100: Instructions for

8330-609: The torturing of the prisoner Mohammed al-Qahtani . In "The Real Meaning of the Hamdan Ruling Supreme Court: Bush Administration Has Committed War Crimes" (2006), the writer Dave Lindorff said that in flouting the Geneva Conventions, the Bush administration were legally liable for war crimes in U.S.-occupied Iraq. In 2006, a prosecutor of the Nuremberg trials (1945–1946), Benjamin Ferencz , said that

8428-488: The use of all forms of chemical and biological warfare in interstate armed conflicts. The protocol grew out of the increasing public outcry against chemical warfare following the use of mustard gas and similar agents in World War I , and fears that chemical and biological warfare could lead to horrific consequences in any future war. The protocol has since been augmented by the Biological Weapons Convention (1972) and

8526-403: The war crimes of his subordinate officers and soldiers. After the war crimes trials of the Second World War, military law expanded the scope and deepened the definition of command responsibility, by imposing criminal liability upon commanding officers who fail to prevent their soldiers committing war crimes against prisoners of war and atrocities against civilians. The last two war-crime trials of

8624-417: The war had ended, it was estimated by French authorities that 2,000 German prisoners were still being killed or maimed each month in mine-clearing accidents. The wording of the 1949 Third Geneva Convention was intentionally altered from that of the 1929 convention so that soldiers who "fall into the power" following surrender or mass capitulation of an enemy are now protected as well as those taken prisoner in

8722-563: The winners (" Victor's justice "), as some controversies have not been ruled as war crimes. Some examples include the Allies ' destruction of Axis cities during World War II , such as the firebombing of Dresden , the Operation Meetinghouse raid on Tokyo (the most destructive single bombing raid in history), and the atomic bombings of Hiroshima and Nagasaki . In regard to the strategic bombing during World War II , there

8820-667: Was a member of the French delegation for both the 1899 and 1907 delegations. He later won the Nobel Peace Prize in 1909 for his efforts. The U.S. representative, with the rank of ambassador, was former American Bar Association president U. M. Rose . The main representative of the Chinese Empire was Lu Zhengxiang , who would become Prime Minister of the Republic of China in 1912. Also in attendance on behalf of China

8918-446: Was called at the suggestion of U.S. President Theodore Roosevelt in 1904. It was postponed because of the war between Russia and Japan . The Second Peace Conference was held from 15 June to 18 October 1907. The intent of the conference was to expand upon the 1899 Hague Convention by modifying some parts and adding new topics; in particular, the 1907 conference had an increased focus on naval warfare . The British attempted to secure

9016-720: Was former U.S. Secretary of State John Watson Foster. China's main military representative was Colonel Ding Shiyuan, whose suggestion regarding the need for a more specific legal definition of "war" was rejected by most of the Western participants. Though not negotiated in The Hague, the Geneva Protocol to the Hague Conventions is considered an addition to the Conventions. Signed on 17 June 1925 and entering into force on 8 February 1928, its single article permanently bans

9114-583: Was found guilty of their war crimes, condemned to death, and then was beheaded. The Knight Hagenbach was accused of, tried, and convicted for war crimes that "he, as a knight, was deemed to have [had] a duty to prevent"; in self-defense, Hagenbach argued that he was only following the military orders of Charles the Bold , the Duke of Burgundy, to whom the Holy Roman Empire had bequeathed Breisach. Although

9212-463: Was introduced and used by all major belligerents throughout the war, in violation of the Declaration (IV, 2) of 1899 and Convention (IV) of 1907, which explicitly forbade the use of "poison or poisoned weapons". Writing in 1918, the German international law scholar and neo-Kantian pacifist Walther Schücking called the assemblies the "international union of Hague conferences". Schücking saw

9310-457: Was no international treaty or instrument protecting a civilian population specifically from attack by aircraft, therefore the aerial attacks on civilians were not officially war crimes. The Allies at the trials in Nuremberg and Tokyo never prosecuted the Germans, including Luftwaffe commander-in-chief Hermann Göring , for the bombing raids on Warsaw , Rotterdam , and British cities during

9408-473: Was planned for 1914 and later rescheduled for 1915, but it did not take place because of the start of World War I . The Hague Conventions of 1899 and 1907 were the first multilateral treaties that addressed the conduct of warfare and were largely based on the Lieber Code , which was signed and issued by US President Abraham Lincoln to the Union Forces of the United States on 24 April 1863, during

9506-516: Was standing in Stuttgart, in which the British delegate Harry Quelch labelled the Hague Convention a "thieves' supper." German authorities were swift in expelling Quelch from the country for his remarks, an action which boosted British esteem in the eyes of their radical peers. The Brazilian delegation was led by Ruy Barbosa , whose contributions are seen today by some analysts as essential for

9604-573: Was the creation of a binding international court for compulsory arbitration to settle international disputes, which was considered necessary to replace the institution of war. This effort failed at both conferences. Instead, a voluntary forum for arbitration, the Permanent Court of Arbitration , was established. Most of the countries present, including the United States , Great Britain , Russia , France , China and Persia , favoured

#102897