The international investigations opened regarding the conflicts in Ukraine and Palestine have extended the use of the expression "war crime." However, not every civilian death or any violation committed during a war automatically receives this classification: it must be a serious infringement of International Humanitarian Law directly linked to an armed conflict.
The legally most precise expression is "war crime", as the concept itself designates an international crime. The Rome Statute of the International Criminal Court includes them, along with genocide, crimes against humanity, and the crime of aggression, among the most serious offenses affecting the entire international community.
What is a war crime?
A war crime is a serious violation of the rules that regulate armed conflicts and protect those who do not participate or have ceased to participate in the fighting.
These rules mainly come from the Geneva Conventions of 1949, their additional protocols, the Rome Statute, and customary international law. They protect, among others, civilians, the wounded, the sick, shipwrecked persons, medical personnel, humanitarian workers, and prisoners of war.
War crimes can be committed in both international armed conflicts, between two or more States, and in certain internal conflicts between a State and organized armed groups or between those groups. A formal declaration of war is not necessary: what matters is the reality of the confrontations.
What requirements must be met?
To qualify a conduct as a war crime, several elements must be present.
First, there must be an armed conflict. A murder committed during a protest, a political crisis, or a situation of common crime may constitute another serious offense, but it will not be a war crime if it is not related to a conflict of this nature.
Second, the conduct must maintain a sufficient connection with the hostilities. It is not enough for the crime to coincide temporally with a war: it must have substantially influenced the capacity, decision, or manner of committing it.
Finally, the criminal responsibility of a specific person must be established and, in general, that they acted with intention and knowledge of the relevant circumstances. A public accusation or a preliminary report does not equate to a judicial conviction.
What acts can constitute war crimes?
Article 8 of the Rome Statute includes an extensive list of behaviors. Among the most relevant are:
- To kill, torture or subject to inhuman treatment civilians, prisoners, the wounded or other protected persons.
- Intentionally directing attacks against the civilian population or against objects that are not military targets.
- Launching an attack knowing that it will cause manifestly excessive civilian damage in relation to the concrete and direct military advantage anticipated.
- Attacking hospitals, medical personnel, humanitarian missions or protected cultural property.
- Taking hostages.
- Committing rape, sexual slavery or other forms of serious sexual violence.
- Pillaging cities, homes or properties.
- Deporting or illegally transferring civilian populations.
- Using the hunger of civilians as a method of warfare.
- Recruiting or using in hostilities persons under 15 years of age.
Is every death of civilians a war crime?
No. International Humanitarian Law does not prohibit any military operation that may cause civilian damage, but it establishes very strict limits.
The parties must always distinguish between civilians and combatants, and between civilian objects and military objectives. They must also take all feasible precautions to minimize damage and cancel an attack when the foreseeable civilian losses are excessive in relation to the expected direct military advantage.
Deliberately attacking civilians may constitute a war crime. It could also be a war crime to consciously launch an indiscriminate or disproportionate attack. However, the existence of civilian casualties does not in itself prove that a crime has been committed: the objective, the available information, the precautions taken, and the foreseeable damage at the time of deciding the operation must be analyzed.
Who can commit a war crime?
Responsibility is individual, not collective. Soldiers, military commanders, political leaders, members of armed groups, and even civilians who order, facilitate or participate in the crimes can be held criminally accountable.
A superior can also be held accountable for the crimes of their subordinates when they knew —or should have known— what was happening and did not take the necessary measures to prevent or punish it. The Rome Statute regulates this figure as command or superior responsibility.
The allegation that a person acted following orders does not automatically eliminate their responsibility. Obedience can only be assessed within the very limited conditions provided by law and does not protect manifestly unlawful orders.
Is it the same as genocide or crimes against humanity?
No. They are different categories, although the same conduct can fit into more than one.
The war crime requires a connection to an armed conflict, but does not require that the facts be part of a widespread campaign.
The crime against humanity requires that the act be committed as part of a widespread or systematic attack against a civilian population, but can occur inside or outside of a war.
Genocide requires the specific intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. The crime of aggression, for its part, essentially refers to the responsibility of leaders for the manifestly illegal use of armed force by one State against another.
Who investigates and judges these crimes?
The primary responsibility lies with national courts. The International Criminal Court acts complementarily when the competent States cannot or do not want to genuinely investigate and judge the facts.
The ICC prosecutes individuals, not States, governments, or political parties. Furthermore, it needs to have jurisdiction over the territory, nationality, or situation being investigated, or receive a referral from the United Nations Security Council.
Spain incorporates these conducts in articles 608 to 614 bis of the Penal Code under the designation of crimes against persons and property protected in the event of armed conflict. Among other acts, it punishes attacks against civilians, mistreatment of protected persons, and the use of certain unlawful methods of combat. The most serious crimes in this chapter are not subject to statute of limitations.