Donald Trump’s threats to wipe out a civilisation and Israel’s alleged use of white phosphorus in Lebanon have once again shone a spotlight on the rules of war.
“Collective punishment on a population and the targeting of protected civilian infrastructure are prohibited under international law,” legal experts told ABC News of Trump’s threats, while his promises to take the country’s oil, “which could amount to pillaging” is also “barred under the law”.
In Lebanon, Human Rights Watch said it was able to verify that Israel was again using the “notorious weapon”, “reigniting accusations that it is breaking the laws of war”, said The Guardian.
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When asked whether his threats constituted a war crime, Donald Trump answered, “You know the war crime? The war crime is allowing Iran to have a nuclear weapon”.
So what constitutes a ‘war crime’?
War crimes are “violations of international humanitarian law” that, unlike genocide and crimes against humanity, “always take place in the context of an armed conflict, whether international or not”, said the United Nations.
These include cases of murder, torture, pillage, intentionally directing attacks against civilians and non-combatants such as humanitarian aid workers, as well as the deliberate targeting of religious and educational buildings, hospitals and, in some cases, vital infrastructure such as power stations and key transport links.
The use of weapons banned by international conventions, such as chemical weapons or cluster munitions, can also be considered a war crime.
What are the major conventions and treaties?
The Geneva Conventions of 1949 and their Additional Protocols introduced in subsequent decades are international treaties that serve as the “most important rules limiting the barbarity of war”, according to the International Committee of the Red Cross. Ratified by all 196 UN member states, in times of war they protect non-combatants, such as civilians, medics, aid workers, and those who can no longer fight, including the wounded, sick or prisoners of war.
There are also additional conventions banning the use of biological weapons (1972), certain conventional weapons (1980), chemical weapons (1993), anti-personnel mines (1997), and cluster munitions (2008).
What happens if someone breaks the rules?
The International Criminal Court (ICC), established under the Rome Statute in 2002, “investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression”.
“Champions of the court say it deters would-be war criminals, bolsters the rule of law, and offers justice to victims of atrocities,” said the Council on Foreign Relations (CFR) think tank. Yet it has, since inception, also “faced criticism from many parties” and has been fundamentally weakened by the refusal of several major powers to join.
As well as the US, Russia and China, non-signatories include India, Egypt, Iran, Israel, Sudan, Syria, Ethiopia, Indonesia, Iraq, North Korea, Saudi Arabia and Turkey.
Recent arrest warrants for national leaders including Russian President Vladimir Putin and Israeli Prime Minister Benjamin Netanyahu have “generated mixed reactions from Washington and raised questions over the future of the court”, said the CFR.
As “no formal ICC jurisdiction applies” to countries that have not signed up to the ICC, the “more immediate legal framework” remains the Geneva conventions of 1949 onwards, said The Guardian.
The Conventions and their Protocols contain stringent rules to deal with those who commit what are known as “grave breaches”, who must be pursued and tried or extradited, whatever their nationality.
The key point here, said Professor Andrew Clapham in OpionioJuris, is that the rules for offences deemed war crimes under the Geneva code apply to “everyone irrespective of whether their state has ratified the ICC Statute, and they can be tried in multiple states around the world, irrespective of whether those states are parties to the ICC Statute”.
“The idea that anyone can avoid accountability for grave breaches by sticking to non-ICC states for one’s trips is fallacious when that person is alleged to have committed grave breaches of the Geneva Conventions.”
