8.2.2. VIOLATIONS OF IHL
All violations of IHL do not constitute war crimes. To be considered a war crime, the violation must entail, under customary or treaty law, the individual criminal responsibility of the person breaching the rule.

8.3.3. PROTECTED PERSONS AND PROPERTY UNDER IHL
Notes for trainers:

Participants should refer to the case study to consider whether the persons who were captured by the YNP and detained would be regarded as prisoners of war or civilians. It should be noted that some of them were armed, when they were captured. However, this does not automatically follow that they would be granted prisoner of war status. It is essential for the participants to consider what the requirements are to be regarded as a combatant.

8.3.3.2. CIVILIANS TAKING NO ACTIVE PART IN THE HOSTILITIES
To establish that crimes against civilians have been committed, the prosecution must prove that the victims of the crimes were civilians and that they were not participating directly in the hostilities.

•were civilians; and
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• that they were not participating directly in the hostilities.52
This is also an element that must be proven for Common Article 3 crimes.53
As stated by an ICTY Trial Chamber, “A civilian who takes part in armed combat loses his or her immunity and becomes a legitimate target”.54
Chambers at the ICTY look at the specific situation of the victim at the moment the crime was committed to determine whether he or she was taking active part in the hostilities or not.55
A person takes active part in hostilities where he or she engages in acts of war which “by their nature or purpose, are likely to cause actual harm to the personnel or materiel of the enemy armed forces”.56

Factors taken into consideration when determining the status of the victim include:

• the activity of the victim;

• whether or not the victim was carrying weapons; and

• the clothing, age and gender of the victim.57

Combatants can be distinguished by wearing a uniform or some distinctive sign and by carrying weapons openly.58
Membership in the armed forces can be a strong indication that a victim is directly participating in the hostilities, but it is not determinative.59 The ICTY Appeals Chamber has held that a driver for a military reservist was not a person taking direct part in the hostilities at the time of the offence.60 The ICC has similarly held that the notion of active or direct participation in hostilities “means not only direct participation in hostilities, combat in other words, but also covers active participation in combat-related activities”.61
It must also be established that the perpetrator knew or should have known that the victim was a civilian not taking active part in the hostilities.62

8.
8.2.5. ELEMENTS OF WAR CRIMES BEFORE THE ICTY
As noted above, at the ICTY there are two separate categories of war crimes: grave breaches of the Geneva Conventions, under Article 2 of the ICTY Statute, and violations of the laws or customs of war, under Article 3.
In order to determine whether conduct constitutes a war crime—either under Article 2 or Article 3—within the jurisdiction of the ICTY, the court must establish the following:

• The violation constitutes an infringement of a rule of international humanitarian law;

• The rule is customary or, if it belongs to treaty law, all required conditions are met;

• The violation is serious, that is to say that it constitutes a breach of a rule protecting important values and involves grave consequences for the victims; and

• The violation of the rule entails, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.

8.2.5.1. GRAVE BREACHES OF THE GENEVA CONVENTIONS (ARTICLE 2 OF THE ICTY STATUTE)
The following elements must be established for an offence to be subject to prosecution as a grave breach under Article 2 of the ICTY Statute:

• The existence of an armed conflict;

• The armed conflict was international in nature;

• A nexus between the alleged crimes and the armed conflict; a
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• The victims of the alleged crimes were a “protected person” under the Geneva Conventions.9

The rules of international law regarding the distinction between international and non-international armed conflicts apply to crimes involving a violation of international law.
In relation to Common Article 3 of the Geneva Conventions, the nature of the conflict (international or non-international) is irrelevant if all of the following conditions are met:

• The violation constitutes an infringement of a rule of international humanitarian law;

• The rule is customary in nature or, if it belongs to treaty law, the required conditions are met;

• The violation was serious, that is to say, it constitutes a breach of a rule protecting important values;

• The breach involved grave consequences for the victim; and

• The violation of the rule entails the individual criminal responsibility of the person

breaching the rule.289

The application of Article 3 of the ICTY Statute requires a determination that a state of armed conflict existed at the time of the commission of the crime and of the existence of a nexus between the alleged crimes and the armed conflict.12

If the crime alleged is an offence that applies only in international armed conflict, then the prosecution must prove the existence of such a conflict.

For charges based on Common Article 3 of the Geneva Conventions, the prosecution must prove that the victim was a person not taking an active part in the hostilities at the time of the alleged crime and that the perpetrator knew or had reason to know that the victim was taking no active part in the hostilities at the time of the alleged violation.13
RIVIČNA DJELA RATNI ZLOČINI
8. WAR CRIMES
8.1. INTRODUCTION
These training materials have been developed by International Criminal Law Services (ICLS) as a part of the OSCE-ODIHR-ICTY-UNICRI “War Crimes Justice Project”, funded by the European Union.
8.1.1. MODULE DESCRIPTION
This Module covers the law applicable to prosecuting war crimes committed in both international and non-international armed conflicts. It explains the elements necessary for proving war crimes prohibited under international humanitarian law (IHL), including:

• grave breaches of the Geneva Conventions;

• violations of Common Article 3 to the Geneva Conventions; and

• other violations of the laws and customs of war.

It demonstrates the distinctions between war crimes committed in international armed conflicts and those committed in non-international armed conflict, and addresses crimes for which the classification of the conflict is irrelevant. The Module sets out the position under international law and considers the prosecution of war crimes.
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Notes for trainers:

This Module is one of the most important for participants as the crimes discussed will be frequently prosecuted within national jurisdictions. It is critical for participants to grasp the unique elements of war crimes as compared with the ordinary national crimes. The participants should also examine the differences in the elements between war crimes, crimes against humanity and genocide.

The elements of the offences must be thoroughly explored, and the use of practical examples from the international and domestic case law would greatly assist in illustrating how the elements are defined and implemented.

It is imperative that participants appreciate the origins and development of IHL, as this will empower them both to understand the rationale behind the legal requirements of war crimes and to develop arguments in favour of interpretations they wish to advance in their cases.

In order to achieve these objectives you will find “Notes to trainers” in boxes inserted at the beginning of important sections. These notes will highlight the main issues for trainers to address, identify questions which the trainers can use to direct the participants to focus on the important issues and to stimulate discussion, make references to the parts of the case study that are relevant and which can be used as practical examples to apply the legal issues being taught.

Structure of this Module:

It is important for trainers to understand that this Module is broken down into four main parts.

o The first section (8.2) provides a definition of war crimes under international law. It includes the provisions on war crimes before the ICTY and a discussion of the main elements of war crimes charged at the ICTY.

o It is followed by a section (0) that describes the elements that are common to all war crimes. These elements are “common” in that they have to be proved for all war crimes irrespective of the particular crimes (i.e. murder, torture, rape, etc.). These are the requirements that make the underlying crime a war crime as opposed to an ordinary crime.

o After the common elements have been examined, the Module discusses each of the war crimes, such as murder, torture, rape, etc. (8.4) There is also a separate section on war crimes involving sexual violence (0).

8.2. DEFINITION OF WAR CRIMES UNDER INTERNATIONAL LAW
Notes for trainers:

The development of the laws prohibiting war crimes has not been straightforward. Participants should be introduced in this first section to the most significant treaties and developments in international humanitarian law (IHL).

It is extremely important that participants understand the distinction between grave breaches of the Geneva Conventions and other violations of IHL.

A useful way of demonstrating this would be to refer the participants to Articles 2 and 3 of the ICTY Statute, asking them to compare the provisions in each of these articles

The laws prohibiting war crimes are a subset of IHL (also known as the law of war or the law of armed conflict).1 IHL is a set of rules that seeks to limit the effects of armed conflict, protect persons who are not participating in hostilities and restrict the means and methods of warfare.
1 See the IHL section on the ICRC website (www.icrc.org) for more on IHL. The ICRC commentaries on the Geneva Conventions and APs are particularly useful sources when interpretation of the provisions of those treaties is required; these are available at http://www.icrc.org/ihl.nsf.
The main sources of IHL are treaties and customary international law.

8.2.1. ESSENTIAL PRINCIPLES OF IHL
The essential principles of IHL include:

(1) Distinction: The parties to a conflict must at all times distinguish between the civilian population and combatants in order to spare the civilian population and civilian property. Neither the civilian population as a whole, nor individual civilians may be attacked. Attacks may be directed solely against military objectives (including combatants).

(2) Proportionality: Attacks are prohibited if they cause civilian damage that is excessive or disproportionate when compared with the direct and concrete military advantage that is gained. In attacking military objectives, combatants must take measures to avoid or minimise collateral civilian damage and refrain from causing excessive civilian damage. There is a prohibition on employing methods and means of warfare of a nature to cause superfluous injury and unnecessary suffering.

(3) Protection: Captured combatants and civilians who find themselves under the authority of the adverse party are entitled to respect for their lives, their dignity, their personal rights and their political, religious and other convictions. They must be treated humanely and without adverse distinction. They must be protected against all acts of violence or reprisal.

8 WAR CRIMES
Genève-konvention III (ZKIII) Medlemmer af de væbnede styrker, der bliver krigsfanger, er kun beskyttet i en international væbnet konflikt.

Grave breaches of the Geneva Conventions:

• Each of the four Geneva Conventions includes “grave breaches” provisions that expressly criminalise the most serious grave violations of the rules provided in the Conventions.

• The list of grave breaches in the Geneva Conventions was expanded in AP I.

• Grave breaches provisions are regarded as part of customary international law.2

• Grave breaches provisions only apply to violations committed during an international armed conflict and against persons who are protected by the Geneva Conventions.

• Protected persons under the Geneva Conventions include civilians and combatants.

o Protected civilians are those persons who are in the hands of the adversary.

o Protected combatants are those persons who qualify.
The table on the next page sets out the main areas of protection provided by the Geneva Conventions and their additional protocols. From: Marin Saric [mailto:saric_902@hotmail.com]

Genève-konventionerne 3 og 4, kun anvendes i den internationale væbnede konflikt. Se tabel.

The table on the next page sets out the main areas of protection provided by the Geneva Conventions and their additional protocols.
IHL is a set of rules that seeks to limit the effects of armed conflict, protect persons who are not participating in hostilities and restrict the means and methods of warfare.

8.2.3. GENEVA CONVENTIONS AND ADDITIONAL PROTOCOLS
Treaty Who is protected When they are protected Protections
Geneva Conventions I & II (GC I, II) Civilians and military personnel who are wounded, sick or shipwrecked. International armed conflict. Establishes minimum standards of treatment for the dead, injured, sick and shipwrecked. It obliges parties to protect and permit medical, religious and humanitarian personnel to assist the injured.
Geneva Convention III (GC III) Members of the armed forces who become prisoners of war. International armed conflict. Obliges the capturing party to ensure the observance of fundamental protections, rights and freedoms.
Geneva Convention IV (GC IV) Civilians in occupied areas or areas affected by armed conflict. International armed conflict. A broad range of protections that guarantee fundamental protections, rights and freedoms.
Article 3 common to Geneva Conventions I – IV Civilians and military personnel who are not actively taking part in hostilities. Non-international armed conflict and international armed conflict.5 Prohibits: murder, torture, cruel treatment, hostage taking, humiliating and degrading treatment, extra-judicial punishments and executions. It imposes minimum protections of due process and an affirmative duty to collect and care of the wounded and sick.

Additional Protocol I to the Geneva Conventions (AP I) All persons affected by the armed conflict. International armed conflict including people fighting: colonial domination, alien occupation or racist regimes. Complements the protections of GC I-IV. Provides for protections in the conduct of hostilities; prohibits the use of weapons that “cause superfluous injury or unnecessary suffering” and provides for superior responsibility.
Additional Protocol II to the Geneva Conventions (AP II) All persons affected by the armed conflict. Non-international armed conflict that take place on the territory of a State between the armed forces of that State and organised armed groups which, under responsible command, exercise control over a part of its territory as to enable them to carry out sustained military operations. All of the protections offered by Common Article 3 plus: basic due process rights and prohibition against the recruitment of soldiers under the age of 15. It imposes a duty to educate children and a duty to reunite families.

8.3.6 The ICTY only has jurisdiction over serious violations of IHL—a breach of a rule protecting important values that involves grave consequences for the victim.

Common Article 3 and the grave breaches provisions of the Geneva Conventions83 are among the key treaty provisions of relevance to this section. A number of other IHL violations84 are also criminalised under customary international law.85
The crimes covered in this section are all considered grave breaches of the Geneva Conventions when their commission also meets the seven elements discussed above in section 8.3. These crimes include:

• Wilful killing;

• Torture;

• Inhuman treatment/Cruel treatment;

• Wilfully causing great suffering or serious injury to body or health;

• Extensive destruction an appropriation of property;

• Compelling a prisoner of war or a civilian to serve in the forces of a hostile power;

• Wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;

• Unlawful deportation or transfer;

• Unlawful confinement of civilians; and

• Taking of hostages.
8.4.1.2.1. PROOF OF DEATH
At the ICTY and ICTR it is not necessary to produce the body as proof of death. Death of the victim may be inferred from circumstantial evidence, provided that it is the only reasonable inference.94
At the ICTY, such evidence can include:

• Identification by an eye-witness that the victim was killed;

• Testimony by a witness that the victim is still missing or dead;

• Introduction of a death certificate issued by a local court naming the victim;95

• Proof of incidents of mistreatment directed against the victim;

• Patterns of mistreatment and disappearances of other detained individuals;

• The general climate of lawlessness;

• Where the acts were committed;

• The length of time which elapsed since the victim’s disappearance;

• The fact that there has been no contact by the victim with others the victim would normally have been expected to contact, such as family members;96

• Local Police reports naming the victims that were killed or injured; or

• Hospital records showing admission of patients and their subsequent death.

.
8.4.1.2.2. MENS REA FOR WILFUL KILLING
According to the ICTY Appeals Chamber, the mens rea for wilful killing as a grave breach is that the accused “intended to cause death or serious bodily injury which, as it is reasonable to assume, he had to understand was likely to lead to death”.97
The intent of the perpetrator at the time of the act or omission must have been to kill the victim, or in the absence of such specific intent, the perpetrator must have acted, or failed to act, in the reasonable knowledge that death is a likely consequence. See also Module 7.2.2.1 (murder as a crime against humanity).
The mens rea may be inferred from direct or circumstantial evidence.98 Premeditation is not required.99
8.4.1.3. TORTURE
Torture as a grave breach of the Geneva Conventions has the same characteristics as torture under Common Article 3. 100 The definition of the underlying crime is also the same as that of torture as a crime against humanity. Torture is absolutely prohibited—no one may be tortured in any circumstances.
The elements of torture are:

• the infliction, by act or omission, of severe pain or suffering, whether physical or mental;

• the act or omission must be intentional; and

• the act or omission must be aimed at obtaining information or a confession, or at punishing, intimidating, or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person.101

It should be noted that acts of sexual violence can constitute torture. Moreover, ICTY case law also confirms that discrimination (e.g. on the basis of gender) is one of the prohibited purposes of torture.102
.
8.4.1.4. INHUMAN TREATMENT OR CRUEL TREATMENT
“Inhuman” treatment is treatment that is not humane.103 Inhuman treatment is defined as:

• an intentional act or omission, which causes serious mental harm or physical suffering or injury or constitutes a serious attack on human dignity

• committed against a protected person (if charged as a grave breach).104

The degree of physical or mental suffering required to prove inhuman treatment or cruel treatment is lower than that required for torture but at the same level as that for wilfully causing great suffering or serious injury to body or health as a grave breach of the Geneva Conventions.105
Practices that constitute inhumane/cruel treatment include:

• use of human shields;106 or

• use of forced labour.107

The following have been held to constitute cruel treatment:

• poor prison camp conditions; 108 or

• shelling a civilian town.109

Inhuman and cruel treatment are related crimes falling under different provisions of the Geneva Conventions. Materially, the elements of the crimes are the same.110
“Inhuman treatment” is a grave breach of the Geneva Conventions, whereas “cruel treatment” falls under Common Article 3. Inhuman treatment is prohibited under treaty and customary ICL.111
The offence of “cruel treatment” under Common Article 3 generally means the same as “inhuman treatment” as a grave breach.112
The only distinction between inhuman treatment as a grave breach and cruel treatment under Common Article 3 is that for the former the victim is a “protected person” whereas for the latter the victim is “a person taking no active part in the hostilities”.113
8.4.1.5. WILFULLY CAUSING GREAT SUFFERING OR SERIOUS INJURY TO BODY OR HEALTH
This crime is constituted by:

• an intentional act or omission that causes great mental or physical suffering or serious injury to body or health, including mental health;

• committed against a protected person.114

“Suffering” includes moral suffering, or mental suffering, as well as physical suffering.115 The words “great” and “serious” in the definition require a finding that a particular act of mistreatment causes suffering or injury of the requisite level of seriousness.116
Serious harm need not cause permanent and irremediable harm, but it must involve harm that goes beyond temporary unhappiness, embarrassment or humiliation.117 It must be harm that results in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life.118 This issue must be decided on a case-by-case basis taking into account all of the circumstances.119
Wilfully causing great suffering or serious injury is a provision that can be used to prosecute acts that do not fulfil the elements of torture, in particular the purposive element. Acts of torture necessarily also meet the elements for this offence.120
Note: This crime differs from that of inhuman treatment in that it requires serious mental or physical injury. Acts where the resultant harm relates solely to an individual’s human dignity are therefore excluded from this offence.121
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The ICTY Appeals Chamber has held that responsibility for unlawful confinement should be placed on the person or persons responsible for the detention, but not on those who merely participate in a system of detention.156
For example, the fact that a person works at a prison where civilians are unlawfully detained is not an adequate basis to establish criminal responsibility for this crime. A guard who fails to take unauthorised steps to release prisoners has not committed the crime of unlawful confinement.157
On the other hand, those who are more directly responsible for the detention may be criminally liable.158 This includes:

• Persons who place a civilian in detention without reasonable grounds to believe he or she is a security risk.159

• Someone with powers over the place of detention that accepts a civilian into detention without knowing that proper grounds exist.160

• Someone with powers to release detainees that fails to do so even though they know there is no reasonable grounds for their detention or that the reasonable grounds have ceased to exist.161

See also the elements of the crime for imprisonment as a crime against humanity, Module 7.2.2.2.6. The underlying elements are the same, except there is a difference between the respective elements of proving a crime against humanity or a grave breach of the Geneva Conventions.162

In relation to Common Article 3 of the Geneva Conventions, the nature of the conflict (international or non-international) is irrelevant if all of the following conditions are met:

• The violation constitutes an infringement of a rule of international humanitarian law;

• The rule is customary in nature or, if it belongs to treaty law, the required conditions are met;

• The violation was serious, that is to say, it constitutes a breach of a rule protecting important values;

• The breach involved grave consequences for the victim; and

• The violation of the rule entails the individual criminal responsibility of the person

breaching the rule.289

Genevekonventionen 3 og 4 kun kan anvendes, hvis der er tale om international konflikt.