Attacking Theodor Meron of the ICTY

There’s nothing like making accusations you can’ t possibly back up: “Have any American or Israeli officials ever exerted pressure on the American presiding judge (the presiding judge for the court that is) to ensure a change of direction?…We will probably never know.”

Precisely. Yet Danish Judge Frederik Harhoff will just let that accusation hang out there anyway.

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International Human Rights Law and War Crimes

Clive Baldwin of Human Rights Watch has written a piece in yesterday’s Guardian entitled “Syria is bound by the laws of war.” Though I agree with much in this article, I’m not so sure about this claim:

“A key area in which many abuses take place in conflict is in the treatment of detainees, and so application of the law is critically needed here. Both IHL and international human rights law – which continues to apply at all times – protect all detainees, strictly prohibiting executions, torture and other abuse. The most fundamental principles of human rights law apply even during genuine emergencies, including the requirements that all detention is subject to judicial review and that only courts of law may try and convict people.”

First, it’s not obvious that international human rights law does continue to apply in times of war because of the law of occupation. Second, IHL already prohibits things like executions, torture, and many other abuses through the grave breaches provisions of the Geneva Conventions and expanded war crimes provisions of the ICC

Is desecration of a dead body a war crime?

There has been much talk recently about how the U.S. soldiers who were pictured urinating on dead Taliban fighters had committed a war crime. This action is in violation of the Geneva Conventions. Article 15, para.1 of Geneva Convention I seems to apply in this situation:

At all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.

But does this rise to the level of a war crime as many have been claiming? I don’t think so as many of the proscribed acts are against live persons and not the dead.

War crimes are a specific body of law which include crimes against humanity, grave breaches of the Geneva Conventions, and genocide. You can be in violation of the Geneva Conventions and yet have not necessarily committed a war crime. This is where most of the confusion seems to lay.

The concept of crimes against humanity has its beginnings in the London Charter of the International Military Tribunal used to try Nazi defendants at Nuremberg. Paragraph 6c defines crimes against humanity as follows:

Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated

In 2002 when the ICC was established at The Hague, the definition of crimes against humanity was significantly broadened. Article 7 of the Rome Statute defines crimes against humanity to include:

Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b)   Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e)   Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The next type of war crime is committing a grave breach of the Geneva Conventions. Article 147 of Geneva Convention IV defines grave breaches as:

…wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

Finally there is the crime of Genocide. Article II of the Genocide Convention defines this war crime as:

any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

So, under these definitions, what the U.S. soldiers did does not seem to rise to the level of a war crime. It is certainly in violation of the Geneva Convention and the UCMJ, but not a war crime