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Friday 9 June 2023 Dublin: 11°C
Shutterstock/STRINGER Image International Criminal Court in the Hague, the Netherlands
Professor of international criminal justice, Dr Niamh Howlin, says countries and individuals can be held responsible for the things they do during war time.

REPORTS HAVE EMERGED recently of another suspected chemical attack in Syria.

Dozens of people, including children, are said to have required medical attention as a result of chlorine gas inhalation.

Chlorine is a common industrial chemical. In low doses, it can damage lungs and cause severe breathing difficulties, nausea, vomiting and other symptoms. In high doses, it can be fatal.

Its use in weapons is explicitly banned by the Chemical Weapons Convention (CWC), an international treaty to which Syria signed up in 2013.

The use of chemical weapons is also specifically prohibited by the Geneva Conventions, the Hague Conventions, the Statute of the International Criminal Court (ICC) and customary international humanitarian law.

The existence of an armed conflict does not amount to a free pass for those who engage in violent activities. War does not create a legal vacuum, and individuals can be held accountable for their actions.

What counts as a war crime?

A war crime is a serious violation of the laws and customs applicable in armed conflict, known as international humanitarian law. The law is concerned with how that conflict is conducted, and applies regardless of the reasons behind the conflict, even if they are just or in self-defence.

Most war crimes are perpetrated against civilians, including those detained in internment or concentration camps. They include sexual violence, torture, biological experimentation, and excessive destruction and appropriation of property.

Poisoning water supplies, burning crops, and causing long-term and severe environmental damage could all be classed as war crimes as well.

While there is no single authoritative list of recognised war crimes, the ICC statute covers 50 categories of war crime, including:

  • Torture and inhuman treatment
  • Willfully causing great suffering or serious injury
  • Unlawful killing
  • Intentionally directing acts against the civilian population
  • Using asphyxiating, poisonous or other gases
  • Using poison or poisoned weapons

Development of war crimes

The idea of war crimes evolved in the late 19th century, particularly in the aftermath of the American Civil War where soldiers had burned down whole towns, and engaged in murderous raids, torture and scalpings.

The Hague Conventions of 1899 and 1907, along with the Geneva Conventions, attempted to set out the rules of war and the minimum standards for the treatment of persons involved in a conflict.

For a long time, these rules were mainly concerned with the actions of states and not individuals, although some low-ranking servicemen might be accused of misconduct during an international conflict.

In the aftermath of the horrors of World War II, the Nuremberg Trials marked a significant development in this area. For the first time, a range of individuals, from high-ranking officers to private citizens, could be made answerable for gross misconduct during armed conflict.

International criminal law (ICL) continued to develop over the 20th century as a relatively new branch of law. The rules of ICL either authorise or require states to prosecute and punish certain conduct in their national courts.

How are war crimes prosecuted

The ICC has jurisdiction over individuals who commit war crimes, crimes against humanity and genocide, and can impose sentences of up to life imprisonment.

However, because Syria is not a party to the ICC, the ICC prosecutor cannot automatically initiate a prosecution. It requires a resolution by the UN Security Council to give the ICC jurisdiction.

The likelihood of this happening is unclear, as permanent members of the Council, including Russia, China and the United States, have the power to veto such a resolution.

The Security Council has a track record of failing to act on other occasions when there was evidence of serious international crimes being committed and has referred situations to the ICC only twice: Darfur in 2005 and Libya in 2011.

The ICC’s role, although important and highly visible in these situations, is generally limited to prosecuting just a few key high-ranking individuals. The vast majority of prosecutions for violations of ICL take place at national level, in national courts or special hybrid courts.

Universal jurisdiction

There is also the possibility of states exercising universal jurisdiction to prosecute individuals for these offences.

The principle of universal jurisdiction is that certain crimes are so serious and of such concern to the international community as a whole, that they can be prosecuted in any state, regardless of where the crimes took place or who committed them.

This is not without controversy and, in practice, most states require some jurisdictional link, such as one of their nationals being either a victim or a perpetrator.

It is clear that individuals on all sides of the current Syrian conflict are potentially leaving themselves open to war crimes prosecutions.

However, while legal frameworks and mechanisms are clearly in place to tackle these sorts of grave offences, political will is essential for any action to be taken.

Dr. Niamh Howlin is a lecturer/assistant professor in UCD, where she teaches International Criminal Justice.

Read: Warplanes have dropped suspected chlorine bombs on a crowded neighbourhood in Aleppo

Read: Radovan Karadzic found guilty of genocide and jailed for 40 years



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