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The liability of civilians under international humanitarian law's war crimes provisions1

Published online by Cambridge University Press:  17 February 2009

Roberta Arnold
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Extract

Contemporary international conflicts are witnessing an increasing involvement of civilians — such as, for example, suicide bombers — in the conduct of hostilities. Unlike regular soldiers, however, whose job it is to fight, civilians are not allowed to participate in combat and may be tried under ordinary criminal law for such activity. The question that this paper will attempt to answer is whether in the case where their engagement may lead to gross violations of humanitarian principles, they may be additionally subject to war crimes proceedings pursuant to international humanitarian law (IHL).

In order to assess the applicability of the war crimes' regime to civilians, this paper will be structured as follows. Part 2 will define who is a civilian. Part 3 will examine the position of international jurisprudence and doctrine on the question whether civilians may also be liable for war crimes and under what conditions. The fourth part will draw the conclusions.

Type
Current Developments
Information
Yearbook of International Humanitarian Law , Volume 5 , December 2002 , pp. 344 - 359
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 2002

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References

3. On this see Hale, E., ‘Suicide bombers eager to enlist’, USA Today (3 04 2003)Google Scholar <http://www.usatoday.corn/news/world/2003-04-03-suicide-bornbers-usat_x.htm>; Judah, T., ‘Confusion reigns in Baghdad amid suicide bombers and hotel explosions’, Sunday Herald (6 04 2003)Google Scholar <http://www.sundayherald.com/32892>.

4. Ipsen, K., ‘Combatants’, in Fleck, D., The Handbook of Humanitarian Law in Armed Conflicts (Oxford, Oxford University Press 1999) pp. 65–104, at 93, para. 317Google Scholar.

5. See Art. 4 III GC. The definition of POW basically mirrors that of combatant. For details, see Arnold, R., ‘Training with the opposition: the status of the “Free Iraqi Forces” in the US war against Saddam Hussein’, 63 Heidelberg JIL (2003y) (forthcoming)Google Scholar.

6. See Pictet, J., Commentary to the IV Geneva Convention (Geneva, ICRC 1958) at p. 50Google Scholar; Sandoz, Y., Swinarski, C. and Zimmermann, B. et al. , eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, Nijhoff 1987), at paras. 1913 et seq.Google Scholar; Kimminich, O., Schutz der Menschen in bewaffneten Konflikt (Grünewald, Kaiser 1979) at p. 509, para. 1665Google Scholar.

7. Pictet, op. cit. n. 6, at p. 51; Sandoz et al., op. cit. n. 6, at para. 1678. For an analysis, including the exceptions such as the case of mercenaries and spies, see Arnold, loc. cit. n. 5, at fh. 91 et seq.

8. Elsea, J., ‘Treatment of “Battlefield detainees” in the War on Terrorism’, Congressional Research Service Report for Congress, 11 04 2002, at p. 11Google Scholar (<http://www.fas.org/irp/crs/RL31367.pdf>; David, E., Principes de droit des conflits armés, 2nd edn. (Brussels, Bruylant 1999) at p. 245, para. 2.11Google Scholar.

9. On this see Arnold, loc. cit. n. 5, at pp. 12 et seq.

10. Prosecutor v. Akayesu, Judgement of 2 September 1998, Case No. ICTR-96–4, para. 630.

11. Ibid.

12. Ibid., at para. 631. This view was confirmed in Prosecutor v. Musema, Case No. ICTR-96–13-T, Judgement and Sentence, 27 January 2000, para. 274; Prosecutor v. Rutaganda, Case No. ICTR-96–3, Judgement of 6 December 1999, Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1, Judgement of 21 May 1999, para. 175.

13. Art. 4 ICTR Statute deals with violations of the laws of war (war crimes).

14. Prosecutor v. Akayesu, supra n. 10, para. 633.

15. The Hadamar Trial, Law Reports of Trials of War Criminals (LRTWC), The UN War Crimes Commission (UNWCC) Vol. I (London, HMSO 1947) pp. 47, at 53–54Google Scholar. (<http://www.ess.uwe.ac.uk/WCC/hadamar.htm>). The case was held between 8 and 15 October 1945.

16. The Hadamar Trial, supra n. 15.

17. Ibid., at p. 47.

18. Ibid., at p. 48.

19. The Essen Lynching case, LRTWC, UNWCC Vol. I, Case 8 (London, HMSO 1947) at p. 88Google Scholar (<http://www.ess.uwe.ac.uk/WCC/essen.htm>). The case was held between 18–19 and 21–22 December 1945.

20. Ibid., at p. 89.

21. Ibid., at p. 91.

22. Ibid., at p. 91.

23. Ibid., at pp. 91–92.

24. Prosecutor v. Akayesu, supra n. 10, para. 633.

25. Prosecutor v. Musema, supra n. 12, para. 270.

26. The Zyklon B case, Trial of Bruno Tesch and two others, LRTWC, UNWCC, Vol. I (London, HMSO 1947) at p. 94Google Scholar (available at <http://www.ess.uwe.ac.uk/WCC/zyklonb.htm>).

27. Art. 46 of the Regulations annexed to the 1907 IV Hague Convention.

28. The Zyklon B case, supra n. 26, at p. 94.

29. Prosecutor v. Musema, supra n. 12 at para. 274. The Trial Chamber relied also on the findings of the Trial Chamber in Prosecutor v. Akayesu, supra, n. 10, paras. 640–644.

30. Prosecutor v. Kayishema, supra n. 12, para. 175.

31. Prosecutor v. Kunarac, Kovac and Kunovic‘Foca’, Case No. IT-96–23 and IT-96–23/1 Judgement, 22 February 2001, at para. 407.

32. Prosecutor v. Akayesu, Case ICTR-96–4, Judgement of 1 June 2001, paras. 444–445.

33. Ibid., paras. 444–445.

34. Ibid., paras. 435–437.

35. Ibid., para. 443.

36. Ibid., paras. 439–444.

37. Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, October 1946-April 1949, Military Tribunal IV, US v. Friedrich Flick et al., Vol. VI, Case No. 5.

38. Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, October 1946-April 1949, US v. Alfred Krupp et al., Vol. 9, Case No. 10.

39. Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, October 1946-April 1949, ‘The I. G. Farben case’, US v. Carl Krauch et al., Vol. 7, Case No. 6 <http://www.mazal.org/archive/nmt/07/NMT07-C001.htm>.

40. Indictment of Farben and others, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, October 1946-April 1949, ‘The I. G. Farben case’, Ibid., at p. 50, para. 120. <http://www.mazal.org/archive/nmt/07/NMT07-T0050.htm>.

41. Ibid. With regard to Farben's role, see at p. 53, paras. 128 et seq. <http://www.mazal.org/ar-chive/nmt/07/NMT07-T0053.htm>.

42. US v. Alfred Krupp et al., supra n. 38 US Military Tribunal at Nuremberg, US v, Alfred Krupp, et al., LRTWC, UNWCC, Vol. X, 1949, pp. 130–159, excerpt reported in Bouvier, A. and Sassoli, M., How does law protect in war? (Geneva, ICRC 1999) at p. 671Google Scholar.

43. Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, October 1946-April 1949, Military Tribunal IV, US v. Friedrich Flick et ai, Vol. VI, Case No. 5. Judgement <http://www.mazal.org/archive/nmt/06/NMT06-T1199.htm>.

44. Ibid., at p. 1192.

45. For example, in the Israeli case ADA 10/94, Unnamed v. The Minister of Defence, Appeal against the ruling of the District Court of Tel Aviv-Jaffa, 22 August 1994, at para. 4, Lebanese detainees claimed to be POWs subject to IHL provisions. The Court, however, rebutted this argument holding that since they did not meet the criteria of Art. 4 (A)(2) of the III GC, they amounted to mere terrorists, to be subject to common criminal proceedings. Similarly, it is arguable that also civilians who are not members of a terrorist group but who nevertheless fail to meet the criteria of this provision, and are not linked to any Party to the conflict, are not subject to IHL rules on warfare, including the war crimes provisions. They are common criminals who may nevertheless invoke the protection accorded to civilians by the IV GC, but who shall be prosecuted pursuant to ordinary criminal law or other headings like crimes against humanity. See also Elsea, loc. cit. n. 8, at p. 11.

46. Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, October 1946-April 1949, Flick et al., supra n. 37 paras. 18–19 of the indictment. <http://www.mazal.org/archive/nmt/06/NMT06-T0023.htm>. See also p. 43: Later in 1932, a basis was laid for permanent and systematic collaboration between Flick and the Nazi leaders. Hitler had asked his personal economic adviser, Keppler, to collect a small group of economic leaders ‘who will be at our disposal when we come into power’. Keppler and Schacht approached Flick, Voegler, and others. The result was the formation of what was then called the ‘Keppler Circle’, which began to hold meetings to discuss the program of the Nazi Party in the economic field, <http://www.mazal.org/archive/nmt/06/NMT06-T0043.htm>. Flick was moreover a member of the Nazi party. See the Judgement, Volume VI, at 1222. <http://www.mazal.org/archive/nmt/06/NMT06-T1222.htm>.

47. Art. 9 ICC Statute states that the elements of crimes shall merely assist the Court in the interpretation and application of Arts. 6, 7 and 8. Thus, they are to be used merely as an interpretative aid. See Dörmann, K., ‘War Crimes in the Elements of Crimes’, in Fischer, H. et al. , eds., International and National Prosecution of Crimes Under International Law (Berlin, Berlin Verlag 2001) pp. 95–139, at p. 95Google Scholar.

48. See the Elements of Crimes, UN Doc. PCNICC/2000/l/Add.2, at p. 18 (introduction to the Elements of Article 8).

49. According to L.C. Green: ‘War crimes are violations of the laws and customs of the law of armed conflict and are punishable whether committed by combatants or civilians, including the nationals of neutral states’. Referred to in Prosecutor v. Tadić, Case IT-94–1-T, Decision on the Defence Motion on Jurisdiction, Judgement of 10 August 1995, at para. 61. Dinstein, Y., ‘The distinction between war crimes and crimes against peace’, in Dinstein, Y. ed., War Crimes in International Law, 2nd edn. (The Hague, Martinus Nijhoff 1996) pp. 1–18, at p. 5Google Scholar. David, op. cit. n. 8, at p. 417, para. 2.243, and at p. 225, para 1.199 et seq. The term civilians used here is intended in the sense of Art. 50 AP I, i.e., both member of irregular forces who do not fulfill the combatant status criteria under III GC, thereby automatically constituting de jure civilians, and other ‘pure’ civilians in the sense of IV GC and Art. 43 AP I, who may however occasionally engage in the hostilities.

50. The dilemma is recalled by Bouvier and Sassoli, op. cit. n. 42, at p. 215: ‘The most delicate case is that of individuals who cannot be considered as connected to one party, but nevertheless commit acts of violence contributing to the armed conflict for reasons connected with the conflict. If such individuals are not considered as addressees of IHL, most acts committed in anarchic conflicts would not be covered by IHL nor consequently punishable as violations of IHL.’ However, these conclusions were drawn before the Akayesu Appeal Judgement of the ICTR in 2001.

51. This is in particular the view of Col. Charles Garraway, of the British Army legal branch, Col. Peter Hostettler, Head of the Law of Armed Conflict Section of the Swiss Ministry of Defence and Lt. Col. William Lietzau, Special Assistant to the General Counsel, U.S. Department of Defense, who said: ‘I agree with the AC…in the Akayesu case… Of course civilians can commit war crimes. To conclude otherwise would, in large part, give immunity to unlawful combatants. While we might like to believe that domestic law could cover these violations, the fact is that, in most of the world, it does not.’ (E-mail of 29 December 2002, on file with the author).

52. Opinion expressed by Lt. Col. William Lietzau, Special Assistant to the General Counsel, US Department of Defense, in an email of 7 April 2003 (on file with the author).

53. See McDonald, A., ‘Defining the War on Terror and the Status of Detainees: Comments on the Presentation of Judge George Aldrich’, 4 Humanitäres Völkerrecht — Informationsschriften (2002) pp. 202, 209Google Scholar.

54. Otherwise, it may have been possible to prosecute these type of acts pursuant to Art. 33 IV GC.

55. See Aldrich, G.H., ‘The Taliban, al Qaida, and the Determination of Illegal Combatants’, 4 Humanitäres Völkerrecht (2002) pp. 200, at p. 203Google Scholar: ‘As persons [the Al Qaeda members…] who have been combatants in hostilities and are not entitled to POW status, they are entitled […] to humane treatment of the same nature as that prescribed by Art. 3 common to the four Geneva Conventions […] but they may lawfully prosecuted and punished under national laws for taking part in the hostilities and for any other crimes, such as murder and assault, that they may have committed.’ Ipsen, instead, confirms that participation in hostilities is an ordinary crime, without specifying the qualification of other crimes that may have been committed. Ipsen, loc. cit. n. 4, at p. 93, para. 317 et seq.

56. Prosecutor v. Tadić, Case No. IT-94–1, Judgement of 15 July 1999, at para. 623.

57. According to Col. Charles Garraway, Directorate of Army Legal Services, UK, in an opinion expressed in a mail to the author, on 31 August 2002 (on file with the author). See also Draper, G.I.A.D., ‘The status of combatants and the question of guerrilla warfare’, 45 BYIL (1971) pp. 183–218, at p. 193Google Scholar: ‘Those participants in combat activities who fail to meet the requirements of Art. 4A(2) and (6) of the 1949 Convention not only stand under no benefit of prisoner-of-war status upon capture, but are exposed to allegations of war criminality for their participation in combat.’ This, however, is not completely true, as the fact of having participated in combat would constitute an ordinary crime, not a war crime. On this see H.-P. Gasser, ‘Protection of the civilian population’, in Fleck, op. cit. n. 4, pp. 209–292, at p. 211, para. 501.

58. See Art. 1 AP II. This situation derives in part from the ‘pairings theory’. On this aspect see Arnold, R., ‘Human rights in times of war: the protection of POWs and the case of Ron Arad’, 5 HRLR (2000) pp. 18, 20Google Scholar. <http://www.nottingham.ac.Uk/law/hrlc/5.l.September.2000.pdf>. Hess, M., Die Anwendbarkeit des humanitären Völkerrecht, insbesondere in gemischten Konflikten (Zürich, Schulthess Polygraphischer Verlag 1985) p. 152Google Scholar.

59. The term refers to de jure civilians in the sense of Art. 50(1) AP I, who, by virtue of their engagement in the hostilities, are de facto combatants. However, since they have no link to any Party to the conflict, they are ‘loose civilian combatants’.

60. Zegveld, L., Accountability of Armed Opposition Groups in International Law (Cambridge, Cambridge University Press 2002) at p. 15CrossRefGoogle Scholar. Pictet, J., Commentary on the First Geneva Convention of 1949 (GenevaICRC 1952) at p. 37Google Scholar.

61. Noll, P. and Trechsel, S., Schweizerisches Strafrecht Allgemeiner Teil I — allgemeine Voraussetzungen der Strajbarkeit (Zürich, Schulthess Polygraphischer Verlag 1998) at p. 76Google Scholar.

62. Röling, B.V.A., ‘Criminal responsibility for violations of the laws of war’, 12 RBDI (1976) pp. 8, 23Google Scholar.

63. See Pictet, op. cit. n. 6, at p. 601, with regard to the offence of appropriation: ‘To constitute a grave breach, such destruction and appropriation must be extensive: an isolated incident would not be enough.’ The fact that most war crimes imply widespread occurrence, implies the existence of an organised structure, suggesting that single individuals committing isolated acts are not encompassed. On this see also the heading of Art. 8 ICC Statute.

64. US Supreme Court, Ex Parte Quirin, 317 US 1 (1942) <http://www.constitution.org/ussc/317-001a.htm#f>.

65. Ibid., at p. 31.

66. Ibid. The charges were: 1. Violation of the law of war. 2. Violation of Art. 81 of the Articles of War, defining the offence of relieving or attempting to relieve, or corresponding with or giving intelligence to, the enemy. 3. Violation of Art. 82, defining the offence of spying. 4. Conspiracy to commit the offences alleged in charges 1, 2 and 3.

67. Ibid., at p. 36: Specification 1 states that petitioners ‘being enemies of the United States and acting for…the German Reich, a belligerent enemy nation, secretly and covertly passed, in civilian dress, contrary to the law of war, through the military and naval lines and defenses of the United States…and went behind such lines, contrary to the law of war, in civilian dress…for the purpose of committing…hostile acts, and, in particular, to destroy certain war industries, war utilities and war materials within the United States’.

68. In this respect, in fact, the decision is incorrect. There are authors suggesting that the criteria contained in Art. 4A(2) III GC apply also to regular members of the armed forces. This, however, is an interpretation that goes against the actual wording. For a critique see Aldrich, loc. cit. n. 55, at p. 204. He refers to Rosas and Mallison as supporters of this controversial view.

69. See Pictet, loc. cit. n. 6, at p. 48.

70. Aldrich, loc. cit. n. 55, at p. 203, fn. 4.

71. See McDonald, loc. cit. n. 52, at p. 207.