Военные преступления: определение и историческое развитие

Individual act constituting a violation of the laws of war

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 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 the Lieber Code (1863) of the Union Army in the American Civil War and the Hague Conventions of 1899 and 1907 for international war.

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 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 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.

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 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 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 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 a plan or policy or as part of a large scale commission of such crimes".

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 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 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 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, 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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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 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 was acquitted of that charge. Under the "Rendulic Rule" persons must assess the military necessity of an action based on the information available to them at that time; they cannot be judged based on information that subsequently comes to light.