War Crimes

[NWRatCon]

There has been a lot of discussion of what constitutes a "war crime" in the context of the Russian invasion of Ukraine, now in its third week. I thought it would be appropriate to start a knowledge thread here so that these discussions can be conducted with information and questions answered forthrightly based upon facts.

For 10 years my military career was focused on what we call "the law of military operations". Most people refer to it as "the law of war", "the law of armed conflict" or, more technically, "International Humanitarian Law (IHL)". There are differences in those terms not relevant here. Most people are familiar with at least the term "the Geneva Conventions" (note the "s" at the end), but that is not the only applicable treaty or law. Those conventions are preceded by "the Hague convention(s)" (actually two), and have been added to by "the Rome Statutes" and various protocols. Together they make up the "traditional" laws of warfare. Most are also specific treaties signed by numerous nations, like the Geneva and Hague Conventions.

It is this body of international law that governs "war crimes" which I'll address in detail as we progress.

 

[NWRatCon]

Some definitions are relevant to keep the discussion on track.

Technically, a "war crime" is any violation of the "law of war". However, prosecution of such crimes is generally limited to "grave beaches" or "serious violations".

The Rome Statutes (actually, the ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT) governs the operation of the International Criminal Court (ICC) at the Hague. But any signatory ("high contracting parties") to the Geneva Conventions is responsible not only for compliance, but for prosecuting violations. Referral to "the Hague", or the ICC, is convenient because it avoids arguments of bias. The statute's article 8 defines "war crimes" for its purposes.

Generally, the conventions and laws apply to "protected persons" and objects. Civilians, medical personnel, prisoners of war, wounded and sick, are protected persons, and protected objects include hospitals, cultural locations, and needful infrastructure. "Parties to a conflict are prohibited to target civilians and required to to take all feasible precautions to avoid attacks that result in civilian casualties. They are also required to avoid defensive measures that put civilians in danger. Civilians may not be used as protective shields or forcibly displaced. Unnecessary attacks on their means of livelihood such as farms, housing, transport and health facilities, are forbidden."

Grave breaches are those that are deliberate or conducted with reckless disregard, for example "(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly" - like shelling neighborhoods, targeting refugees, journalists, medical personnel or facilities, or destroying power stations, places of worship, etc.

Combatants are those engaged in fighting (including armed civilians, levee en masse) and non-combatants are everyone else, and can include soldiers who are captive, surrendering or wounded and out of combat (hors de combat).

 

[oneworld2]

As non ratifiers of the Rome Statutes , in the context of the Ukraine war, the Russians, the Ukrainians and the USA are not in a position to refer any claims of war crimes. There are many obstacles in the way brought about by the none ratification which also impacts on the UNSC ability to deal with any. AFAIK

 

[NWRatCon]

As non ratifiers of the Rome Statutes , in the context of the Ukraine war, the Russians, the Ukrainians and the USA are not in a position to refer any claims of war crimes. There are many obstacles in the way brought about by the none ratification which also impacts on the UNSC ability to deal with any. AFAIK

Let me correct some errors in your knowledge:

First, all three are signatories to the Geneva Conventions. As such, they are "High Contracting Parties", and required to investigate and prosecute war crimes. As Article 10 provides, "Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute." (I should note here that US personnel may also be subject to such jurisdiction as Afghanistan was a 2003 signatory to the ICC.)

Moreover, Ukraine, while not a signatory to the Rome Statute, accepted ICC jurisdiction over its territory in 2013, in accordance with Article 4.2, which provides, "The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State." Ukraine has accepted ICC jurisdiction within its territory (which is where the conflict is occurring), and the ICC has proceeded on that basis.

Second, anyone can file a communication to the ICC: How to file a communication to the ICC-Prosecutor "Pursuant to Article 15 of the Rome Statute, any individual, group, or organization can send information on alleged or potential ICC crimes to the Office of the Prosecutor (OTP) of the ICC." Many signatory States have also made such referrals.

Third, most of the violations in question here fall under what is deemed "Customary International Law". "Customary international law is made up of rules that come from "a general practice accepted as law" and that exist independent of treaty law. Customary international humanitarian law (IHL) is of crucial importance in today's armed conflicts because it fills gaps left by treaty law in both international and non-international conflicts and so strengthens the protection offered to victims."

The Hague Conventions have been deemed "customary" since the Second World War, and provisions of the Geneva Conventions, regarding civilians in particular, have been deemed "customary" for decades, at least with regard to crimes against peace, crimes against humanity and genocide. "The International Military Tribunal at Nuremberg determined that violations of the Hague Regulations amounted to war crimes because these treaty rules had crystallized into customary law by the time of the Second World War. Similarly, the negotiation of the Statute of the International Criminal Court was based on the premise that, to amount to a war crime to be included in the Statute, the conduct had to amount to a violation of a customary rule of international law." ICRC IHL Database.

Finally, the ICC is the only permanent international criminal tribunal, but the UN has frequently established commissions to investigate and prosecute war crimes, such as the United Nations (UN) War Crimes Commission, the World War II tribunals at Nuremberg and Tokyo, and the modern UN ad hoc and hybrid international tribunals for the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, Lebanon and others. That pattern, and those examples, have established international investigation and prosecution as customary law.

 

[NWRatCon]

There is an interesting and thoughtful post at Just Security on this issue: Balancing the US Approach to the ICC. In that piece (Feb 2021), he notes. "As the Biden administration develops a new direction in American foreign policy, the ICC is similarly engaged in the endeavor to chart a new institutional course. As Todd Buchwald recently summarized in Just Security, “the Court is at an inflection point in its history.” With the nascent reset of U.S. foreign policy in the making, relations specifically between the United States and the International Criminal Court are at an inflection point as well.

This post examines some considerations that may be useful in the endeavor to build a more balanced U.S. approach to the ICC."

Another relevant piece on that site is this: Mechanisms for Criminal Prosecution of Russia’s Aggression Against Ukraine.

"Russia’s aggressive war against Ukraine is one of the clearest violations of article 2(4) of the United Nations Charter since its entry into force. In addition to legal implications for the responsibility of Russia as a state, the events have generated renewed interest in the possibility of individual accountability for the crime of aggression. Although not punished at the international level since World War II, planning, preparing, initiating, or waging (sometimes termed “executing”) such a war has been recognized as criminal under customary international law since findings to that effect by the International Military Tribunals at Nuremberg and Tokyo in the 1940s, as exemplified by the consensus affirmation of the UN General Assembly in 1946 and 1974 and the 2017 agreement of the 123 States Parties to the International Criminal Court (ICC). The question, of course, is whether and how criminal cases could be prosecuted in this instance." (Bolding mine)

"The burgeoning political will to pursue criminal accountability for this particular war of aggression is striking both for the publicity surrounding it and for its historical rarity. Questions relating to jurisdiction, immunities, and the wisdom of such initiatives abound. In addressing those questions below, one analytic point, among others, becomes clear. The creation of a tribunal with the support of a UN General Assembly resolution would place it on the firmest footing. Before considering each of those issues, however, it is necessary first to clarify the scope of criminal responsibility for aggression."

 

[Antiwar]

Let me correct some errors in your knowledge:

First, all three are signatories to the Geneva Conventions. As such, they are "High Contracting Parties", and required to investigate and prosecute war crimes. As Article 10 provides, "Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute." (I should note here that US personnel may also be subject to such jurisdiction as Afghanistan was a 2003 signatory to the ICC.)

Moreover, Ukraine, while not a signatory to the Rome Statute, accepted ICC jurisdiction over its territory in 2013, in accordance with Article 4.2, which provides, "The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State." Ukraine has accepted ICC jurisdiction within its territory (which is where the conflict is occurring), and the ICC has proceeded on that basis.

Second, anyone can file a communication to the ICC: How to file a communication to the ICC-Prosecutor "Pursuant to Article 15 of the Rome Statute, any individual, group, or organization can send information on alleged or potential ICC crimes to the Office of the Prosecutor (OTP) of the ICC." Many signatory States have also made such referrals.

Third, most of the violations in question here fall under what is deemed "Customary International Law". "Customary international law is made up of rules that come from "a general practice accepted as law" and that exist independent of treaty law. Customary international humanitarian law (IHL) is of crucial importance in today's armed conflicts because it fills gaps left by treaty law in both international and non-international conflicts and so strengthens the protection offered to victims."

The Hague Conventions have been deemed "customary" since the Second World War, and provisions of the Geneva Conventions, regarding civilians in particular, have been deemed "customary" for decades, at least with regard to crimes against peace, crimes against humanity and genocide. "The International Military Tribunal at Nuremberg determined that violations of the Hague Regulations amounted to war crimes because these treaty rules had crystallized into customary law by the time of the Second World War. Similarly, the negotiation of the Statute of the International Criminal Court was based on the premise that, to amount to a war crime to be included in the Statute, the conduct had to amount to a violation of a customary rule of international law." ICRC IHL Database.

Finally, the ICC is the only permanent international criminal tribunal, but the UN has frequently established commissions to investigate and prosecute war crimes, such as the United Nations (UN) War Crimes Commission, the World War II tribunals at Nuremberg and Tokyo, and the modern UN ad hoc and hybrid international tribunals for the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, Lebanon and others. That pattern, and those examples, have established international investigation and prosecution as customary law.

That's as clear as mud.

Quoting:

2. Is the US a member of the ICC?

The US is not a state party to the Rome Statute. The US participated in the negotiations that led to the creation of the court. However, in 1998 the US was one of only seven countries – along with China, Iraq, Israel, Libya, Qatar, and Yemen – that voted against the Rome Statute. US President Bill Clinton signed the Rome Statute in 2000 but did not submit the treaty to the Senate for ratification. In 2002, President George W. Bush effectively “unsigned” the treaty, sending a note to the United Nations secretary-general that the US no longer intended to ratify the treaty and that it did not have any obligations toward it. However, since then, US relations with the court have been complicated but often positive (see question 7 below).

Q&A: The International Criminal Court and the United States

This Q&A addresses key questions regarding the International Criminal Court (ICC) and the relationship between the court and the United States.

www.hrw.org

 

[NWRatCon]

That's as clear as mud.

This is something that I have a great deal of interest in, and I mostly wanted to start a discussion and answer any questions that might come up.

I've been thinking about this really since the invasion began, but I hadn't considered the "war of aggression" aspect of it until this morning. Since the planning and execution of the plan occurred in Russia, the ICC would not have jurisdiction over those individuals that are in Russia for that particular offense. They would have jurisdiction over the actions that actually occur in Ukraine, including over Russian nationals (a complication in the US' position with regard to ICC jurisdiction).

Under customary international law, and the Geneva Conventions, however, the international community can assert jurisdiction to try violations, and apparently Poland, as a signatory to the GC, is already gearing up to do just that. That assertion of jurisdiction would also apply to the United States, if it so chose - that is, any "High Contracting Party" has jurisdiction to try war crimes - even if not a belligerent. I think, though, the end result is likely to be the creation in the UN of an ad hoc commission specifically to address Ukraine.

There is little doubt in my mind that several substantive war crimes have occurred - in addition to initiating a war of aggression - during the conflict. It goes far beyond failure to "distinguish" between combatants and non-combatants. The most obvious violations, in my view, are the deliberate targeting of protected places and persons, and the refusal to allow humanitarian aid.

 

[oneworld2]

Let me correct some errors in your knowledge:

international investigation and prosecution as customary law.

Let's just start by saying that the ICC has it's limitations even though it is the mechanism to prosecute for war crimes

The charge of a war of aggression is off the table as it is not covered by ICC jurisdiction.

They may be signatories to the GCs but the likelihood that either Russia or Ukraine will prosecute their own leaderships for the war crimes both have already committed is zero.


The ICC has been investigating the conflict in Donbas and the Maidan protests, along with the situation in Crimea, from 2014 as part of a preliminary investigation. It is likely that both sides will have committed war crimes as is the case above but that this is the preliminary investigation and is already 7 years long doesn't hold up much hope for the veracity of the process nor prospects of any convictions. imo That's the real world for you.

As non signatories to the Rome statutes Russia is not legally bound by them. Another problem.

The Russian veto in the UNSC is another obstacle to a path made to prosecute for war crimes

I hope to see a day whereby ALL war criminals are brought to justice but feel that the selective approach actually undermines the laws themselves and thus they lose legitimacy. The fact that past criminals that have also engaged in the same type of crime/crimes walked free emboldens future wouldbe criminals

I will leave you with a sobering account of how these things play out when it is the powerful that are the criminals.

Nicaragua filed a ICJ case against the US terrorism used against it in the 1980s. and won that case The court found the US guilty of many charges and determined that it pay reparations to Nicaragua. The US dismissed the decision, nobody was prosecuted and no reparations were ever forthcoming. This too is the real world

The old adage that the powerful do what they want and the weak suffer what they must is as obvious in international law trials as it is is international relations. The Hagues record of prosecutuions is a testimony to both that and the racism that is evident in these cases.

Those who push for the application of the law to official enemies only are themselves a BIG part of the problem imo

 

[Rogue Valley]

For informational purposes: The Russian constitution forbids the extradition of any Russian citizen on a foreign warrant or to stand trial in a foreign court.

 

[Antiwar]

I hope to see a day whereby ALL war criminals are brought to justice ...

I hope to see the day that all wars are considered criminal. The USG doesn't want that. And it seems that @NWRatCon is avoiding that line of discussion.

 

[Rogue Valley]

I hope to see the day that all wars are considered criminal. The USG doesn't want that. And it seems that @NWRatCon is avoiding that line of discussion.

You're in The Loft now. Instead of ruining this thread, start another thread about criminalizing all wars.

 

[oneworld2]

I hope to see the day that all wars are considered criminal. The USG doesn't want that. And it seems that @NWRatCon is avoiding that line of discussion.

Yep, it seems ridiculous that the prosecution of wars of aggression are outside the remit of the ICC. I mean, whether they have any clout or not they still should be allowed to prosecute on that.

The Nuremberg Trials are instructive insomuch that most of the charges were always running alongside that which the allied side had done themselves and so it was decided to indict them for waging a war of aggression, from which all the other crimes stemmed. They had all committed war crimes and there lay a problem

To see the legal clamour and the response to the illegal Russian war on Ukraine is instructive as well. Did you see the same when the US illegally waged war on Iraq? Where were the multiple states instant appeal to the UN for investigations of war crimes there?

As I said earlier, if you don't support actions against ALL criminals and only those of offical state enemies it brings in question , in a huge way, any real commitment to justice and law imo

 

[oneworld2]

You're in The Loft now. Instead of ruining this thread, start another thread about criminalizing all wars.

Why are you compelled to think you have the right to tell people what they should be posting about here?

I get that you and the creator of the OP might only want to see official enemies of the state being discussed but that actually undermines the very laws you are referring to. Selective application is the killer of laws and strips out any legitimacy they may have.

It also imo highlights that those people are not really into supporting those laws but rather using and abusing them

 

[Antiwar]

You're in The Loft now. Instead of ruining this thread, start another thread about criminalizing all wars.

Maybe you or a moderator will move this thread to an appropriate forum, if that's called for.

 

[Antiwar]

Yep, it seems ridiculous that the prosecution of wars of aggression are outside the remit of the ICC. I mean, whether they have any clout or not they still should be allowed to prosecute on that.

The Nuremberg Trials are instructive insomuch that most of the charges were always running alongside that which the allied side had done themselves and so it was decided to indict them for waging a war of aggression, from which all the other crimes stemmed. They had all committed war crimes and there lay a problem

To see the legal clamour and the response to the illegal Russian war on Ukraine is instructive as well. Did you see the same when the US illegally waged war on Iraq? Where were the multiple states instant appeal to the UN for investigations of war crimes there?

As I said earlier, if you don't support actions against ALL criminals and only those of offical state enemies it brings in question , in a huge way, any real commitment to justice and law imo

I think that it's very difficult to argue against the notion that the USG doesn't want international justice to be apply to the USG.

 

[oneworld2]

I think that it's very difficult to argue against the notion that the USG doesn't want international justice to be apply to the USG.

I get that and think it applies to all leaderships BUT the people of those nations supporting it/being indifferent to it and then asking for others to be indicted by it. like as though it didn't matter when they were the criminals lol that's taking the piss out of it completely

 

[Antiwar]

I get that and think it applies to all leaderships BUT the people of those nations supporting it/being indifferent to it and then asking for others to be indicted by it. like as though it didn't matter when they were the criminals lol that's taking the piss out of it completely

IF the international justice system goes after Putin/Russia, then that should open USG/NATO and everyone else up to them. Putin/Russia is quite possibly inadvertently bringing progress to the international justice system. The USG wants to be the international injustice system.

The international justice system is being misused by the West, it seems. I wouldn't be surprised if the "Third World" gets the short end of the stick and the "First World" has a firm grip on the handle end of the stick, using it as a world police baton.

 

[oneworld2]

IF the international justice system goes after Putin/Russia, then that should open USG/NATO and everyone else up to them. Putin/Russia is quite possibly inadvertently bringing progress to the international justice system. The USG wants to be the international injustice system.

The international justice system is being misused by the West, it seems. I wouldn't be surprised if the "Third World" gets the short end of the stick and the "First World" has a firm grip on the handle end of the stick, using it as a world police baton.

If only I could believe that the first line would be true

What the backlash to the Russian war with Ukraine shows imo is the injustice of the system itself. The hypocrisy of the likes of the UN and the ICC itself. You look at the strength of the condemnations against this and pose that against the illegal US led attack on Iraq, Stark is the only word that springs to mind

The third worlders already know how unjust it is, they are the bulk of people that have passed through the doors at the Hague. They vote at the UN under the gaze of economic guns that can be a catastrophe for them if they vote " the wrong way" Why isn't voting anonymous etc Why can't the security council permanent members lose their veto? etc etc

There are many things and many obstacles to pass through but the start from me is for people to not support the crimes of their own first and foremost

 

[DiAnna]

Moderator's Warning:

This is the Loft. The thread will not be moved; the poster disrespecting the thread will be.

 

[NWRatCon]

Maybe you or a moderator will move this thread to an appropriate forum, if that's called for.

Or, maybe, and this is just a thought, you could keep your comments in compliance with the forum? I don't make the rules. The subject matter isn't controversial.

As I stated at the outset, the idea was to be educational, not adversarial. 'I thought it would be appropriate to start a knowledge thread here so that these discussions can be conducted with information and questions answered forthrightly based upon facts.'

 

[NWRatCon]

Or, maybe, and this is just a thought, you could keep your comments in compliance with the forum? I don't make the rules. The subject matter isn't controversial.

As I stated at the outset, the idea was to be educational, not adversarial. 'I thought it would be appropriate to start a knowledge thread here so that these discussions can be conducted with information and questions answered forthrightly based upon facts.'

Oh. I see I'm too late.

 

[NWRatCon]

Let's just start by saying that the ICC has it's limitations even though it is the mechanism to prosecute for war crimes

The charge of a war of aggression is off the table as it is not covered by ICC jurisdiction.

They may be signatories to the GCs but the likelihood that either Russia or Ukraine will prosecute their own leaderships for the war crimes both have already committed is zero.


The ICC has been investigating the conflict in Donbas and the Maidan protests, along with the situation in Crimea, from 2014 as part of a preliminary investigation. It is likely that both sides will have committed war crimes as is the case above but that this is the preliminary investigation and is already 7 years long doesn't hold up much hope for the veracity of the process nor prospects of any convictions. imo That's the real world for you.

As non signatories to the Rome statutes Russia is not legally bound by them. Another problem.

The Russian veto in the UNSC is another obstacle to a path made to prosecute for war crimes

I hope to see a day whereby ALL war criminals are brought to justice but feel that the selective approach actually undermines the laws themselves and thus they lose legitimacy. The fact that past criminals that have also engaged in the same type of crime/crimes walked free emboldens future wouldbe criminals

I will leave you with a sobering account of how these things play out when it is the powerful that are the criminals.

Nicaragua filed a ICJ case against the US terrorism used against it in the 1980s. and won that case The court found the US guilty of many charges and determined that it pay reparations to Nicaragua. The US dismissed the decision, nobody was prosecuted and no reparations were ever forthcoming. This too is the real world

The old adage that the powerful do what they want and the weak suffer what they must is as obvious in international law trials as it is is international relations. The Hagues record of prosecutuions is a testimony to both that and the racism that is evident in these cases.

Those who push for the application of the law to official enemies only are themselves a BIG part of the problem imo

You started well (but couldn't control yourself, I see. )

Yes, there are complications regarding the ICC. That is one of the difficulties with its structure and jurisdiction. I'm a big proponent of the ICC, and the United States ratifying it.

One of the difficulties in international law is the cumbersome process of enforcement. Intervention is never effective, at least not immediately. It took years to bring Milosevich, and others, to trial. I expect that will be true of this conflict. Trials have not occurred regarding Crimea eight years on.

 

[oneworld2]

You started well (but couldn't control yourself, I see. )

I thought you were not wanting any adversarial tones to the discussion? This is your second one already imo so you might need to apply the above to yourself if things are to move in the direction you. allegedly, wish them to.

That said it is becoming more and more apparent that this is a thread not concerned with war crimes in general but war crimes specific to the Ukraine/Russia war/situation. I have informed you that I think those who wish to apply them/ discuss them in a none universal application type way don't actually support them at all and their actions actually completely undermine the very laws they are referencing

Where , exactly did I lose " control" ?

Was it by insisting that I wished to see all war criminals indicted for their crimes? (See above reasoning for this)

Or the fact that I cited an ICC decision on war crimes, (even if the dialogue was legalese watered down) that found the USA guilty of them in its proxy war against the people of Nicaragua ? ( a case where a powerful nation was actually found guilty of war crimes)

Both are relevant to any discussion on " war crimes" so I can only assume you, unsurprisingly, don't want to talk about war crimes and the ICC themselves and only about how they might feature in the very narrow parameters of the war in Ukraine.

This view was endorsed when you stated that.........................." I've been thinking about this really since the invasion began "

Some of us, the ones who wish to see all the criminals indicted/convicted , think that such narrow and partisan views ,along with the accompanying selective applications of justice they tend only to support,. are one of the most dangerous underminers of those laws themselves and thus feel compelled to reject that approach to this field of international relations.

Thus the discussion should be able to include other cases of international criminal behaviours by states such as the one cited above and any others the nations now clambouring to apply to the Ukraine/Russia war, that they are guilty of themselves and any other suitable references imo

Yes, there are complications regarding the ICC. That is one of the difficulties with its structure and jurisdiction. I'm a big proponent of the ICC, and the United States ratifying it.

One of the difficulties in international law is the cumbersome process of enforcement. Intervention is never effective, at least not immediately. It took years to bring Milosevich, and others, to trial. I expect that will be true of this conflict. Trials have not occurred regarding Crimea eight years on.

It took 3 years from indictment of Milosevic to trial and , because he died before he could complete the defence of himself, we were left lacking crucial evidence that might have affected the verdict itself


Additionally, without UNSC backing it is likely that the NATO countries that took part in that campaign also committed war crimes in attacking another sovereign nation and causing the deaths of many civilians but that leads us back to the inevitable , the powerful prosecute the weak in most cases.

It is 19 years since Bush and Blair waged their illegal war against Iraq which accounted for maybe a million peoples lives and a country completely destroyed and still in conflict as a legacy of that crime.

I would also argue that the US attack on Afghanistan led to grave war crimes and the further destruction of the country itself, again left in chaos, Where was a similar response to these illegal wars?

It is the ridiculous selectivity above that both undermines the laws themselves and emboldens others to future criminality imo and if a debate is to be had and laws are to be discussed we owe it to the laws themselves and the spirit with which they were created to apply them to all criminals and not just to the official enemies of the state. No?

 

[NWRatCon]

I thought you were not wanting any adversarial tones to the discussion? ...
That said it is becoming more and more apparent that this is a thread not concerned with war crimes in general but war crimes specific to the Ukraine/Russia war/situation. I have informed you that I think those who wish to apply them/ discuss them in a none universal application type way don't actually support them at all and their actions actually completely undermine the very laws they are referencing

Where , exactly did I lose " control" ?

This was intended, explicitly, to be a discussion about what constitutes a war crime. As with every discussion I've been involved in with you, you then twist it to bash the West in general, and the US specifically, and divert from the topic, usually with vague allegations, over-the-top rhetoric, and incomplete assertions with propagandist overtones. That's not the subject of the thread, nor its purpose.

This is intended, again, explicitly, to be a "knowledge" thread. That is why I was willing to address the juridical arguments you raised, specifically, but not go haring off into the advocational space you want to occupy. Indeed, you haven't touched, except tangentially, on the topic at all in your extended rants. It is you, not I, that seeks to be adversarial. I don't feel the need to respond regarding that post any further, as not germane to the topic.

 

[NWRatCon]

In previous posts I addressed the sources for International Humanitarian Law. Here I'd like to focus more on substance/principles. Later, I'll address specific application.

It is frequently stated that there are four "pillars" to the law of war: distinction; proportionality; military necessity; and unnecessary suffering. Virtually every "war crime" is therefore addressed to one of those points, so understanding them in detail is important. In my view, the core principle is avoiding "unnecessary suffering", and the other the principles are the supports that uphold the core. Others reorder them, or state them differently.

"In practice, the application of this basic rule is always a compromise between military necessity and humanity, as the principle of “superfluous injury or unnecessary suffering” has been interpreted as referring to harm that would not be justified by military utility, either because of the lack of even the slightest utility or because utility is considerably outweighed by the suffering caused." (ICRC Casebook) The adage "war is hell" is applicable here.

All the parties to international conventions recognize that the conduct of war involves suffering - intentionally - yet many specific rules address questions of necessity and excess. For example, prohibitions on "dum-dum" bullets and chemical weapons are intended to prevent unnecessary suffering - the military objective is to achieve a military purpose, e.g. destroy a tank or combat position - not to inflict the most pain on the enemy soldier, although injury and death are likely outcomes. (This concept also applies to the concept of war of aggression, as aggression, almost by definition, is "unnecessary".)

The concept touches on the other three "pillars" as well - distinction; proportionality; military necessity.

Military necessity, sometimes, military utility, "permits measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by international humanitarian law. In the case of an armed conflict the only legitimate military purpose is to weaken the military capacity of the other parties to the conflict." (ICRC Casebook)

Distinction is between legitimate targets (including persons) and protected persons and places. "Parties to an armed conflict must “at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives”. (ICRC Casebook)

Proportionality refers to the force necessary to accomplish the purpose. "
The principle of proportionality prohibits attacks against military objectives which are “expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”. In other words, the principle of proportionality seeks to limit damage caused by military operations by requiring that the effects of the means and methods of warfare used must not be disproportionate to the military advantage sought. (ICRC Casebook)