The International Criminal Court (ICC) is a global judicial institution, instituted by the 1998 Rome Statute of the ICC, its foundational regulatory document. The court commenced operation on July 1, 2002, upon the enforcement of the statute. It is primarily situated in The Hague, Netherlands, and is recognised by 123 nations who are State Parties to the Rome Statute. However, certain powerful nations including the USA, China, Russia, and India are not members. This court was set up as the final resort for litigation against offences that may otherwise remain unpunished. It has jurisdiction over four major crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.
Clarifying the Concept of War Crimes
War crimes basically represent severe infringements of humanitarian laws during a conflict. The 1949 Geneva Conventions were instrumental in defining war crimes, as per the Rome Statute of the ICC. This view predicates on the notion that individuals can be held responsible for a state or its military’s actions. Examples of war crimes include purposeful killings, holding hostages, inhumane treatment or torture of prisoners of war, and forcing children into warfare.
The 1949 Geneva Conventions and Their Significance
The Geneva Conventions of 1949 and their supplementary Protocols are international treaties that contain cardinal rules that limit the inhumanity of war. They safeguard those who do not engage in combat (civilians, medics, aid workers) and individuals who are incapable of fighting (wounded, sick, and shipwrecked troops, prisoners of war). These conventions offer protection to wounded and sick soldiers on land, and military personnel at sea during war, prisoners of war, and civilians, including those in occupied territories. India is a signatory to the Geneva Convention.
Understanding Criteria for War Crimes
Three principles underpin the determination of war crimes as per international humanitarian law. The first principle, ‘Distinction’, states that it is illegal to target objectives that may cause incidental loss of civilian life, injury to civilians, damage to civilian objectives which would be excessive relative to the expected direct military advantage. The second, ‘Proportionality’, forbids armies from using excessive violence in response to an attack. The third, ‘Precaution’, mandates all parties involved in a conflict to avoid or minimise harm to civilians.
Gray Area in Definition of War Crimes
However, there is ambiguity in defining war crimes. Actions like bombing residential buildings, schools or conducting raids on cities or villages, and even killing groups of civilians do not necessarily constitute war crimes. The same act can escalate into a war crime if it results in unnecessary destruction, suffering and casualties surpassing the military gain derived from the attack. Additionally, distinguishing between civilian and military populations have become increasingly challenging.
Distinguishing Between War Crimes and Crimes Against Humanity
The United Nations Office on Genocide Prevention and the Responsibility to Protect, also known as the Genocide Convention, differentiates between war crimes, genocide, and crimes against humanity. While war crimes occur either in a domestic conflict or a war between two states, genocide and crimes against humanity can occur during peacetime or when a military unilaterally aggresses an unarmed group.
