War Crimes, Genocide, and Other Crimes Against Humanity under International Humanitarian Law

International Humanitarian Law (IHL), often referred to as the "laws of war," governs the conduct of armed conflicts. Its primary aim is to limit the effects of war on people and property. Specifically, IHL seeks to protect individuals who are not or no longer participating in hostilities (such as civilians, medical personnel, and prisoners of war), and it restricts the means and methods of warfare. A critical area of IHL addresses the commission of serious violations such as war crimes, genocide, and crimes against humanity.

1. War Crimes

War crimes refer to serious violations of the laws and customs of war. These crimes are defined in various international legal instruments, such as the Geneva Conventions of 1949 and their Additional Protocols, the Hague Conventions of 1899 and 1907, and the Rome Statute of the International Criminal Court (ICC).

Elements of War Crimes: To constitute a war crime, the following elements must generally be present:

A state of armed conflict (international or non-international);
The perpetrator’s actions must be in violation of IHL norms; and
The act must involve grave breaches, such as targeting civilians, inhumane treatment of prisoners of war, or destroying protected objects.

Examples of War Crimes:

Wilful killing of civilians or combatants who are hors de combat (out of combat);
Torture or inhuman treatment, including biological experiments;
Unlawful deportation or transfer, and unlawful confinement of a civilian population;
Targeting non-combatants, including civilians, medical personnel, and aid workers;
Hostage-taking;
Sexual violence, including rape and forced prostitution;
Attacks on protected objects, such as schools, hospitals, and religious sites;
Use of prohibited weapons, such as chemical and biological agents.

Under the Rome Statute, individuals, including military leaders and political officials, can be held personally liable for committing war crimes.

2. Genocide

Genocide is a particularly heinous crime, defined as acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. The Convention on the Prevention and Punishment of the Crime of Genocide (1948) and the Rome Statute define genocide and list acts that can constitute the crime.

Elements of Genocide:

Intent: The specific intent to destroy, in whole or in part, a group based on nationality, ethnicity, race, or religion. This distinguishes genocide from other crimes against humanity, which do not require this intent to destroy a particular group.
Acts: Any of the following acts can constitute genocide if committed with genocidal intent:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting conditions of life calculated to bring about the group’s physical destruction;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.

Key Cases of Genocide:

The Holocaust: The systematic extermination of six million Jews by Nazi Germany.
Rwanda (1994): The massacre of around 800,000 Tutsis by the Hutu-majority government.
Srebrenica (1995): The mass killing of over 8,000 Bosniak men and boys by Bosnian Serb forces.

Under the Genocide Convention, states have a duty to prevent and punish genocide, and the ICC can prosecute individuals responsible for the crime.

3. Crimes Against Humanity

Crimes against humanity refer to widespread or systematic attacks directed against civilians. These crimes may occur during peace or armed conflict, unlike war crimes, which require an armed conflict context. The Rome Statute and customary international law are the primary sources defining and prosecuting these crimes.

Elements of Crimes Against Humanity:

The acts must be committed as part of a widespread or systematic attack against a civilian population;
There must be knowledge of the attack;
The attack can occur during war or peacetime.

Examples of Crimes Against Humanity:

Murder;
Extermination (including intentional deprivation of food and medicine);
Enslavement, including trafficking in persons;
Deportation or forcible transfer of populations;
Imprisonment or other severe deprivation of physical liberty;
Torture;
Rape and other forms of sexual violence (forced prostitution, forced pregnancy, forced sterilization);
Persecution on political, racial, national, ethnic, cultural, religious, or gender grounds;
Enforced disappearance of persons;
Apartheid.

The distinction between crimes against humanity and war crimes is crucial. While war crimes require a nexus to armed conflict, crimes against humanity do not. They are broader in scope and can include actions such as apartheid and enforced disappearances, which may not directly relate to an armed conflict.

4. Prosecution and Accountability

International Criminal Court (ICC): The Rome Statute established the ICC in 1998 to prosecute individuals for the most serious international crimes: genocide, war crimes, crimes against humanity, and the crime of aggression. The ICC operates based on the principle of complementarity, meaning it can only prosecute cases where national courts are unable or unwilling to do so.

Jurisdiction: The ICC can exercise jurisdiction if the crime was committed in a state that is a party to the Rome Statute or if the accused is a national of a state party. Additionally, the UN Security Council can refer situations to the ICC.
Individual Responsibility: Under international criminal law, individuals can be held personally accountable for war crimes, genocide, and crimes against humanity. This includes political leaders, military commanders, and others who give orders or participate in such acts.
Command Responsibility: Military commanders and superiors can be held liable for crimes committed by forces under their control if they knew or should have known about the crimes and failed to prevent or punish the perpetrators.

Ad hoc International Tribunals: Several ad hoc international tribunals have been established to prosecute war crimes, genocide, and crimes against humanity. These include:

International Criminal Tribunal for the former Yugoslavia (ICTY), which dealt with crimes committed during the Balkan conflicts;
International Criminal Tribunal for Rwanda (ICTR), which prosecuted those responsible for the 1994 Rwandan genocide.

National Courts: States also have the duty to prosecute war crimes, genocide, and crimes against humanity under the principle of universal jurisdiction, which allows states to prosecute these crimes regardless of where they were committed and regardless of the nationality of the perpetrator or victim.

5. Philippines’ Legal Framework and Obligations

The Philippines, as a state party to the Rome Statute until its withdrawal in 2019, had incorporated international humanitarian law principles into its domestic legal framework. The country enacted Republic Act No. 9851, also known as the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, which provides for the prosecution of these crimes within the Philippines.

Key Provisions of RA 9851:

The Act mirrors the definitions found in international law for war crimes, genocide, and crimes against humanity.
It establishes the legal basis for prosecuting individuals in the Philippines who commit serious violations of IHL, genocide, and crimes against humanity, whether in the context of international or non-international armed conflict.
RA 9851 also includes provisions on the responsibility of commanders and other superiors for crimes committed by subordinates under their effective authority and control.
The Philippine Supreme Court is the final arbiter in ensuring that the Philippines complies with its international obligations, including IHL and human rights law.

In summary, war crimes, genocide, and crimes against humanity are serious violations of international law. States, including the Philippines, are bound by international treaties and customary law to prevent and prosecute these crimes. International bodies, such as the ICC, play a pivotal role in ensuring accountability, while domestic laws provide a framework for national prosecution.