GROUP 8 IHL MEMBERS

I. Chantal Tingu- 19s01allb041

II. Veronica Mwangi- 19s01allb019
III. Joseph Wainaina- 19s01allb057
IV. Kasike K. Mureithi- 22j01allb078
V. Judy Nini- 21j01allb067
VI. Purity Mwenesi- 20s01all006
VII. Vivian Valerie- 19s01allb013
VIII. Lorna Kahonzi- 21s01allb055
IX. Victor Yona- 20s01allb019
X. Okello Marynelly- 20s01allb021
XI. Miriam Chepngetich-22j01allb075

COURSE INSTRUCTOR: DR. RODGERS ODHIAMBO

TASK:
Give account of the following:
a) War crimes and related issues
b) What is a war crime
c) Command responsibility
d) Defences

Table of Contents
INTRODUCTION......................................................................................................................... 1
WHAT IS A WAR CRIME? .......................................................................................................... 1
Relationship between War Crimes and International Humanitarian Law ......................... 3
Elements of war crimes ............................................................................................................. 4
Attempts to Prosecute War Crimes ......................................................................................... 7
WORLD WAR I (1914-1918) ................................................................................................. 7
WORLD WAR II..................................................................................................................... 8
World War I vs. World War II Prosecutions ......................................................................... 11
Improvements from World War I to World War II Prosecutions: ........................................ 12
Later attempts to Prosecute War Crimes ............................................................................. 12
1. International Criminal Tribunal for the Former Yugoslavia (ICTY) and Rwanda (ICTR)12
2. International Criminal Court (ICC): .................................................................................. 13
3. Hybrid Tribunals: .............................................................................................................. 13
Differences from The First Two Attempts:........................................................................... 13
SIGNIFICANCE OF THESE ATTEMPTS IN THE KENYAN LEGAL CONTEXT: ........... 14
WAR CRIMES AND RELATED ISSUES .................................................................................. 16
Related issues ........................................................................................................................... 19
COMMAND RESPONSIBILITY ................................................................................................ 20
Command responsibility for failing to act ............................................................................ 22
 Perpetrator responsibility for failing to act .......................................................................... 22
Command responsibility as per the Statute of the International Criminal Court (ICC) . 23
a. Responsibility of military commanders ......................................................................... 24
b. Responsibility of civilian superiors ................................................................................ 24
A hierarchical superior even if he is a non-militant, is criminally responsible for crimes
within the jurisdiction of the ICC committed by subordinates under his authority if; .......... 24
Responsibility of superiors during a non-international armed conflict ............................. 25
Principles that were borne from the trials held after World War II that are incorporated
in the Additional Protocol I of 1977....................................................................................... 26
Case law of Ad Hoc International Criminal Tribunals........................................................ 27
The Geneva Conventions of 1949........................................................................................... 27
Additional Protocol I of 1977 ................................................................................................. 28
ICC rulings based on command responsibility .................................................................... 29
Issues......................................................................................................................................... 35
DEFENCES .................................................................................................................................. 35
1. SELF DEFENCE ............................................................................................................. 36
2. COUNTER MEASURES ................................................................................................ 39
3. CONSENT ........................................................................................................................ 42
4. FORCE MAJEURE ......................................................................................................... 44
5. NECESSITY AS A DEFENCE ....................................................................................... 46
Reasonable Belief ........................................................................................................... 48
An Objective Standard ................................................................................................... 48
No Realistic Alternative ................................................................................................. 49
No Greater Harm ............................................................................................................ 49
No Involvement in the Threat ........................................................................................ 50
6. DEFENSE OF EXTREME EMOTIONAL DISTRESSS ............................................ 50
7. DURESS ............................................................................................................................ 52
The Difference between Duress and Necessity .................................................................. 52
CONCLUSION ........................................................................................................................... 53
Table of cases ................................................................................................................................ 54
List of Statutes .............................................................................................................................. 55
Bibliography ................................................................................................................................. 55
INTRODUCTION
The archeological history of warfare is complete as it has been there for a very long time. 1 The

only thing about warfare that has been changing over time is how frequent it manifests itself and

how lethal its effects are. The Cambridge Dictionary describes warfare as the activity of fighting

a war, often including the weapons and methods that are used. 2 Examples of warfare include:

World War I, American Civil War, Afghanistan War and World War II. As time goes by, warfare

weapons have also evolved to be more lethal and destructive.

It is during warfare that war crimes are committed. The term war crime has been defined in various

statutes including the Rome statute which states that a war crime is a grave breaches of the Geneva

Conventions of 12 August 1949.3 A war crime is, basically an act that violates International

Humanitarian Laws. This essay will focus on the definition of a war crime, command

responsibility, defences and issues related to war crimes.

WHAT IS A WAR CRIME?

A war crime occurs when Superfluous injury or unnecessary suffering is inflicted upon an enemy.

It includes such acts as mistreatment of prisoners of war or civilians. After World War I different

international statutes have defined the term war crime. A war crime is a serious violation of

International Humanitarian Laws.

1
Anthony Lopez, The International Handbook on Collective Violence: Current Issues and

Perspectives, The Evolution of Warfare (2019) Routledge

2
Cambridge Advanced Learner’s Dictionary & Thesaurus, CUP

https://dictionary.cambridge.org/dictionary/english/warfare
3
Rome Statute of the International Criminal Court 1998 Art 8

1
Article 8(2) of the Rome Statute provides the definition of a war crime as a grave breach of the

Geneva Conventions of 12 August 1949. The acts that are considered to be grave breaches of the

Geneva Conventions 1949 are mentioned in the Rome statute to include:4

i. Wilful killing

ii. Torture or inhuman treatment, including biological experiments

iii. Wilfully causing great suffering, or serious injury to body or health

iv. Extensive destruction and appropriation of property, not justified by military necessity and

carried out unlawfully and wantonly

v. Compelling a prisoner of war or other protected person to serve in the forces of a hostile

Power

vi. Wilfully depriving a prisoner of war or other protected person of the rights of fair and

regular trial

vii. Unlawful deportation or transfer or unlawful confinement;

viii. Taking of hostages.

Further, paragraph (b) of the same states other serious violations of the customs and laws

applicable in International Humanitarian Law. The Rome statute establishes the International

Criminal Court.5 Article 5 also gives the ICC jurisdiction to preside over cases on war crimes.

Article 147 of the 4th Geneva Convention states that the grave breaches involve acts committed

against persons or property such as: wilful killing, torture or inhuman treatment, wilfully causing

great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful

4
UN General Assembly Rome Statute of the International Criminal Court 1998 Art 8(2)(a)
5
UN General Assembly Rome Statute of the International Criminal Court 1998 Art 1

2
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. These are

the same acts that have been mentioned in the Rome Statute.

Section II of the Lieber Code criminalizes acts of a war crime for example it states that it is no

longer considered lawful to force the subjects of the enemy into the service of the victorious

government, except the latter should proclaim, after a fair and complete conquest of the hostile

country or district, that it is resolved to keep the country, district, or place permanently as its own

and make it a portion of its own country.6 The Leiber Code was the first modern codification of

both customary international law and the law of war of Europe, and later was a basis for the Hague

Convention of 1907, which restated and codified the practical particulars of that U.S. military law

for application to international war among the signatory countries.

Relationship between War Crimes and International Humanitarian Law

As it has been established, a war crime is a serious violation of International Humanitarian Laws.

International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the

effects of armed conflict. It protects persons who are not or are no longer participating in the

hostilities and restricts the means and methods of warfare. International humanitarian law is also

known as the law of war or the law of armed conflict.

6
The Lieber Code 1863 Art 33

3
Therefore, as a war crime happens when there are grave breaches during an armed conflict,

International Humanitarian Law criminalizes such breaches and attempts to prosecute them.

International Humanitarian Law limits the effects of armed conflicts by:

a) Protecting those who are not or are no longer participating directly in hostilities

b) Limiting the means and methods of warfare

The rules on war crimes started to develop at the end of the 19th Century. Before World War II, it

was generally accepted that the horrors of war were part of the nature of war, and recorded

examples of war crimes go back to Greek or Roman times.

Before the 20th century, armies frequently behaved brutally to enemy soldiers and non-combatants

alike and whether there was any punishment for this depended on who eventually won the war. At

the time, there was no structured way of dealing with crimes.

However, as it will be seen under the ‘attempts to prosecute war crimes’, attempts were made to

regulate warfare therefore leading to formation of International Humanitarian Laws which

criminalized certain acts which were considered to be against humanity.

Elements of war crimes

War crimes are violation of the International Humanitarian Laws of war that gives rise to

individual criminal responsibility under International Laws for actions by combatants in action,

such as intentionally killing civilians or intentionally killing prisoners of war, torture, taking

hostages, unnecessarily destroying civilian property, deception by perfidy, wartime sexual

4
violence, pillaging, and for any individual who is part of the command structure who orders any

attempt to commit mass killings, including genocide.7

Unlike genocide and crimes against humanity, war crimes must always occur during an armed

conflict, whether international or not.

What constitutes a war crime varies depending on whether the armed conflict is international or

non-international.

For example, war crimes as per Article 8 of the Rome Statute include:

i. Violations of international armed conflict laws and customs;

ii. Violations of Article 3 of the four 1949 Geneva Conventions pertaining to non-

international armed conflicts.

iii. Serious violations of non-international laws and customs during armed conflict.

From a more substantive standpoint, war crimes can be classified as:

a) War crimes against people who need special protection

b) War crimes against those who provide humanitarian aid and peacekeeping operations

c) War crimes against property and other rights

d) Prohibited methods of warfare

7
Cassese, Antonio (2013). Cassese's International Criminal Law (3rd Ed.). Oxford University

Press. pp. 63–66. ISBN 978-0-19-969492-1. Archived from the original on April 29, 2016.

Retrieved October 5, 2015.

5
e) Prohibited means of warfare.

Examples of prohibited acts include: murder, mutilation, cruel treatment, and torture; taking

hostages; intentionally directing attacks against civilian populations; intentionally directing attacks

against buildings dedicated to religion, education, art, science, or charitable purposes, historical

monuments, or hospitals; pillaging; rape, sexual slavery, forced pregnancy, or any other form of

sexual violence; conscripting or enlisting children under the age of 15 into the army.

War Crimes contain 2 elements:

Contextual element: "the conduct took place in the context of and was associated with an

international/non-international armed conflict";

Mental element: intent and understanding of both the particular act and the context.

In contrast to genocide and crimes against humanity, war crimes can be perpetrated against a wide

range of victims, including combatants and non-combatants, depending on the nature of the crime.

Victims in international armed conflicts include wounded and sick personnel of the armed forces

on the ground and at sea, prisoners of war, and civilians. Persons who do not actively participate

in non-international armed conflicts are protected, including members of armed forces who have

laid down their arms and those who have been placed 'hors de combat' due to illness, wounds,

detention, or other reasons. Medical and religious people, humanitarian workers, and civil defense

personnel are all protected throughout both sorts of conflicts.8

8
un.org

6
Attempts to Prosecute War Crimes

WORLD WAR I (1914-1918)

World War I (1914-1918) was a conflict marked by unprecedented scale and brutality, leading to

the loss of millions of lives. War crimes were committed by various parties during the conflict, and

attempts were made to prosecute individuals for these crimes. The most notable effort in this regard

was the establishment of the War Crimes Commission following the end of World War I.

1. Treaty of Versailles (1919):

The Treaty of Versailles, signed on June 28, 1919, marked the official end of World War I. Part of

the treaty included provisions for the prosecution of individuals accused of war crimes.

2. Creation of the War Crimes Commission:

Article 228 of the Treaty of Versailles established the War Crimes Commission, which was tasked

with identifying and prosecuting individuals responsible for war crimes during the conflict.

3. Scope of War Crimes:

The commission aimed to address a broad range of war crimes, including crimes against humanity,

violations of the laws and customs of war, and acts that contravened the Geneva Conventions.

4. Identification and Prosecution:

The commission worked on identifying individuals responsible for war crimes, collecting

evidence, and preparing cases for prosecution. However, the process faced numerous challenges,

including the lack of a centralized authority for enforcement.

5. National Trials:

7
Many nations conducted their own trials to prosecute individuals for war crimes. The most famous

among these was the Leipzig Trials in Germany, where the government tried individuals accused

of committing atrocities during the war.

6. Failure and Limitations:

Despite initial efforts, the War Crimes Commission faced limitations in terms of jurisdiction,

cooperation among nations, and enforcement capabilities. The geopolitical landscape and the lack

of a centralized international legal framework hindered the commission's effectiveness.

7. Legacy and Future Developments:

The efforts to prosecute war crimes after World War I laid the groundwork for subsequent attempts

at international justice. The Nuremberg Trials after World War II represented a more

comprehensive and successful effort to hold individuals accountable for war crimes.

8. International Criminal Court (ICC):

The establishment of the International Criminal Court (ICC) in 2002 marked a significant

development in the pursuit of justice for war crimes. The ICC serves as a permanent international

tribunal, aiming to prosecute individuals for crimes against humanity, war crimes, and genocide.

In summary, the attempt to prosecute World War I war crimes through the War Crimes Commission

faced significant challenges and limitations, but it laid the foundation for future endeavors in

international justice, including the establishment of the ICC.

WORLD WAR II

The prosecution of war crimes after World War II represents a watershed moment in the

development of international law and the pursuit of justice. Here's a detailed overview:

8
1. Nuremberg Trials (1945-1946):

The most iconic post-World War II war crime trials were held at Nuremberg, Germany. The

International Military Tribunal (IMT) was established by the Allied powers, including the United

States, the United Kingdom, the Soviet Union, and France, to prosecute major war criminals from

Nazi Germany.

2. Legal Framework:

The Nuremberg Trials established the precedent for prosecuting individuals for crimes against

peace, war crimes, crimes against humanity, and conspiracy to commit these crimes. The concept

of individual criminal responsibility, including the principle that "just following orders" is not a

valid defense, was emphasized.

3. Defendants and Charges:

The Nuremberg Trials saw high-ranking Nazi officials, military leaders, and industrialists facing

charges. Twelve prominent Nazis were sentenced to death, and others received various prison

terms.

4. Tokyo Trials (1946-1948):

The International Military Tribunal for the Far East (IMTFE), commonly known as the Tokyo

Trials, prosecuted individuals responsible for war crimes in the Pacific theater. Similar to

Nuremberg, the Tokyo Trials addressed crimes against peace, war crimes, and crimes against

humanity.

5. Defendants at Tokyo Trials:

9
Japanese political and military leaders, including Prime Minister Hideki Tojo, were among the 25

defendants. Seven were sentenced to death, and others received prison terms.

6. Principles Established:

The trials established important legal principles, such as the recognition of crimes against

humanity, the prohibition of aggressive war, and the idea that individuals could be held accountable

for state actions.

7. Legacy:

The Nuremberg and Tokyo Trials laid the foundation for subsequent international criminal justice

mechanisms. They influenced the development of the Geneva Conventions, the Universal

Declaration of Human Rights, and the establishment of the United Nations.

8. Geneva Conventions (1949):

The post-World War II period also saw the revision and strengthening of the Geneva Conventions,

which established protections for prisoners of war, civilians, and the wounded during armed

conflicts.

9. International Criminal Court (ICC):

The establishment of the International Criminal Court (ICC) in 2002 was a direct outcome of the

lessons learned from Nuremberg and Tokyo. The ICC serves as a permanent tribunal to prosecute

individuals for genocide, crimes against humanity, war crimes, and the crime of aggression.

In summary, the prosecution of war crimes after World War II, particularly through the Nuremberg

and Tokyo Trials, was a pivotal moment in international law. It set the stage for the development

10
of modern principles of humanitarian law and laid the groundwork for subsequent efforts to ensure

accountability for egregious violations of human rights.

The attempts to prosecute war crimes after World War I and World War II differed significantly in

terms of scope, legal framework, and outcomes. Subsequent to these, other efforts have been made

to prosecute war crimes, with notable developments in international criminal justice. Let's explore

the differences and improvements:

World War I vs. World War II Prosecutions

1. Legal Framework:

In World War I, the Treaty of Versailles established the War Crimes Commission, but the legal

framework was limited, and there was no centralized international court. However, in World War

II, the Nuremberg and Tokyo Trials were conducted by the International Military Tribunals,

representing a more robust legal framework with defined crimes against peace, war crimes, and

crimes against humanity.

2. Individual Criminal Responsibility:

World War I had the concept of individual criminal responsibility was not as clearly defined, and

prosecutions were less systematic. In comparison, in World War II, Nuremberg and Tokyo Trials

established the principle that individuals, including political and military leaders, could be held

accountable for war crimes, crimes against peace, and crimes against humanity.

3. Scope and Coverage:

In World War I, the War Crimes Commission had limitations in jurisdiction and enforcement,

leading to fewer prosecutions. Comparatively, in World War II, the Nuremberg and Tokyo Trials

11
were more comprehensive, addressing major war criminals from Nazi Germany and Japanese

leaders. The trials set important precedents for the recognition of crimes against humanity.

Improvements from World War I to World War II Prosecutions:

1. Centralized International Tribunals:

The Nuremberg and Tokyo Trials represented a significant improvement by establishing

centralized international tribunals with jurisdiction over major war criminals.

2. Legal Definitions and Principles:

The Nuremberg Trials refined and expanded legal definitions, recognizing crimes such as genocide

and crimes against humanity, providing a more comprehensive legal basis for prosecution.

3. Recognition of Individual Criminal Responsibility:

The Nuremberg Trials clarified the principle that individuals could be held criminally responsible

for actions ordered by a state, contributing to the development of international humanitarian law.

4. Influencing International Law:

The Nuremberg and Tokyo Trials had a lasting impact on the development of international law,

influencing subsequent treaties and conventions, including the Geneva Conventions and the

Universal Declaration of Human Rights.

Later attempts to Prosecute War Crimes

1. International Criminal Tribunal for the Former Yugoslavia (ICTY) and Rwanda (ICTR)

Established in the 1990s to address war crimes committed during the conflicts in the Balkans and

the Rwandan Genocide. These ad hoc tribunals paved the way for the ICC.

12
2. International Criminal Court (ICC):

Established in 2002 as a permanent international court to prosecute individuals for genocide,

crimes against humanity, war crimes, and the crime of aggression.

3. Hybrid Tribunals:

Tribunals with both international and domestic elements have been established, such as the Special

Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia, addressing

crimes committed in those regions.

Differences from The First Two Attempts:

1. Permanence:

The ICC is a permanent court, representing a departure from the ad hoc nature of the Nuremberg

and Tokyo Tribunals.

2. Expanded Jurisdiction:

The ICC has a broader jurisdiction, allowing it to address war crimes committed in conflicts around

the world.

3. Global Support:

The establishment of the ICC reflects a more global consensus on the need for a permanent

international court to address war crimes, crimes against humanity, and genocide.

In summary, the attempts to prosecute war crimes after World War II marked a significant evolution

in international justice, with improvements in legal frameworks, the establishment of permanent

international courts, and a more comprehensive approach to addressing atrocities. These

13
developments have contributed to the ongoing pursuit of accountability for those who commit

grave international crimes.

SIGNIFICANCE OF THESE ATTEMPTS IN THE KENYAN LEGAL CONTEXT:

The attempts to prosecute war crimes, particularly after both World War I and World War II, have

shaped international humanitarian law and global history. The significance of these moments and

the evolution of strategies in addressing such crimes are as discussed herein below:

1. Establishment of Legal Precedents:

The attempts to prosecute war crimes after both World War I and World War II set crucial legal

precedents. The Nuremberg and Tokyo Trials, in particular, established the principles of individual

criminal responsibility and recognition of crimes against humanity. These precedents laid the

foundation for subsequent developments in international humanitarian law.

2. Shift towards Accountability:

The Nuremberg Trials marked a paradigm shift by holding individuals accountable for their

actions, even when acting on behalf of a state. This shift emphasized the idea that individuals,

including political and military leaders, could be held responsible for crimes committed during

armed conflicts. This has contributed to a culture of accountability in international relations.

3. Evolution of International Law:

The trials after World War II significantly influenced the development of international law. The

legal principles established at Nuremberg and Tokyo, including the prohibition of aggressive war

and the protection of human rights, played a crucial role in shaping subsequent international

treaties and conventions.

14
4. Recognition of Human Rights:

The Nuremberg Trials contributed to the broader recognition of human rights as an integral part of

international law. The Universal Declaration of Human Rights, adopted in 1948, drew inspiration

from the principles articulated during the trials, emphasizing the importance of protecting

individuals from atrocities and ensuring their inherent dignity.

5. Creation of Permanent International Institutions:

The establishment of the International Criminal Court (ICC) in 2002 represents a milestone in the

evolution of strategies to address war crimes. Unlike the ad hoc tribunals after World War II, the

ICC is a permanent institution with a mandate to prosecute individuals for the most serious

international crimes. This institutionalization reflects a commitment to ongoing accountability.

6. Hybrid Tribunals and Regional Accountability:

The creation of hybrid tribunals, such as the International Criminal Tribunal for the Former

Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), demonstrated the

international community's recognition of the need for specialized mechanisms to address specific

conflicts. These tribunals also contributed to the development of regional accountability measures.

7. Global Consensus on Justice:

The pursuit of justice through international criminal tribunals and courts reflects a global

consensus on the importance of holding perpetrators accountable for war crimes, genocide, and

crimes against humanity. It signifies a collective effort to prevent impunity and promote a more

just and humane world order.

8. Kenya's Role and Contribution:

15
Kenya has been an active participant in discussions around international humanitarian law,

contributing to the global dialogue on justice and accountability. The country's engagement in

regional peace and security initiatives also aligns with the broader goals of preventing and

addressing conflict-related crimes.

In conclusion, the attempts to prosecute war crimes after World War I and World War II, along

with the subsequent establishment of permanent international institutions, have played a pivotal

role in shaping international humanitarian law and fostering a collective commitment to justice

and accountability on the global stage. These moments represent significant strides towards a more

just and humane world order, with lessons learned and applied in subsequent efforts to address

atrocities and protect human rights.

WAR CRIMES AND RELATED ISSUES

Rule 156 – serious violations of International Humanitarian Law9 constitute war crimes. Practice

under Volume ii, chapter 44 Section A10. Some practice established this rule as a norm of

customary international law applicable both in armed and non-international armed conflicts. The

statue of international criminal court defines war crimes as inter alia , serious violations of the

laws and customs applicable in international armed conflict. The statute of international armed

conflict. The statue of international criminal tribunal of Rwanda and Yugoslavia11 also provide

jurisdiction over ‘serious’ violations of IHL. The Delalic case of 2001, interpreting Article 3 of

9
Rule 156 of International Humanitarian Law
10
Volume (II) chapter 44 Section A
11
Rwanda and Yugoslavia Statute

16
the statutes of International Criminal tribunal12 for the former Yugoslavia lists the violations of

wars or customs of war over which the tribunal has jurisdiction over . War crimes is found in

various treaties and other international instruments, as well as in national legislation and in case

laws, which shows that violations are in practice treated as serious therefore, as we crimes if they

endanger protected persona or objects:

i. The conduct endangers protected persons or objects. Since majority of war crimes involve

death, injury, destruction or unlawful taking of property. However not all acts necessarily

have to result to actual damage to persons/ objects in order to amount to war crimes

example being subjecting a protected person to medical experiments.

ii. The conduct breaches important values . Acts may amount to war crimes because they

breach important values, even without physically endangering persons/ objects directly.

Example being abusing dead bodies and subjecting a person to humiliating treatment.

Tadic case of 199513, states that in order for an offense to be subjected to prosecution before the

tribunal the violation must be serious that is to say it must constitute the breach of the two roles

above and there must be a grave consequences to it an example being a military personnel taking

a loaf of bread from a private individual that is a violation of Article 46(1), of the Hague

Regulations14 but would not amount to serious violations of IHL. Violations of Customary

International law or treaty law. International tribunal at Nuremberg15 determined that violations

12
Delalic case of 2001, Article 3 of the statutes of International Criminal tribunal
13
Tadic case of 1995
14
Article 46(1), of the Hague Regulations
15
International tribunal at Nuremberg

17
of the Hague Regulations amounted to war crimes because those treaty rules had been crystallized

into customary law by the time of the second world war. In addittion the ICC states that to amount

to war crime to be included in the statute the conduct had to be a violation of a customary rule of

the international law. War Crimes include both acts and omissions. Failure to provide medical

treatment of adversaries can result to war crimes. Perpetrators practice in form of regulations show

that war crimes are violations either committed by armed forces member or by civilians against

members of the armed forces, civilians or protected objects of the adverse party. The mental

element under international case laws have indicated that war crimes are violations that are

committed willingly i.e either intentional dolus directus or recklessly dolus orentualis the exact

mental element varies depending on the crime concerned. Rule 157 of the IHL16 regulations also

touches on who has jurisdiction over war crimes.

Having explained war crimes as the violation of the laws or customs of war usually defined by the

international customary laws and international treaties and anyone who breaches the international

humanitarian law should be held liable even if it’s either the state or an individual. War crimes are

prosecuted through International War Crimes Tribunal.

The united states prosecute war crimes using the War Crimes Act of 1996 and the Articles from

the Uniform Code of the Military Justice.17

16
Rule 157 of the IHL
17
War Crimes Act of 1996 and the Articles from the Uniform Code of the Military Justice

18
War crimes are basically crimes against humanity which include Genocide, torture, ill treatment

of civilians, deportation, Rape and other crimes disrupting peace also use of prohibited weapons

to maintain peace.

Related issues

1. Prosecution and punishment of individuals responsible for the war crimes. The Kenya post-

election violence of 2007- 2008 The killings, sexual violence against women and children

and displacement of civilians were the major crimes, highest ranked politicians who were

known to have incited the civilians were prosecuted at the ICC and justice was served to

those who were affected by the violence. Some politicians were also deported who

involved in the murder. Rwanda Genocide of 1994 was done on the minority groups dues

to assassination of Rwandan president, people were killed, prohibited weapons used, rape,

displacement of millions of people, it was the darkest war in the entire history. The

evidence was gathered to identify those involved in the Genocide including some

politicians, The UN established International Criminal Tribunal for Rwanda established in

1994 to prosecute and punish those who were found guilty and to prosecute the politicians

and military officials was effective in Arusha Tanzania and completed its purpose in 2015.

2. Protection of civilians during Armed conflicts and the addressing the root cause of Armed

conflicts, by allowing access to humanitarian Aid like Red cross to provide the basic needs

to those affected by the armed conflicts. International collaboration like the African Union.

Lubanga case from The Democratic Republic of Congo having breached the Rome statute

and Geneva convention by the use of child warriors under the age of 15 years between the

year 2002 and 2003 recruiting children into hostile groups to cause hostility and disrupt

peace, he was sentenced to 14 years in prison by the ICC.

19
 3. Prevention of future war crimes, this is looking at the root causes of the war crimes and

identifying factors that might be contributing to the war crimes including poverty, political

instability, religious factors and others, after identifying the main root cause then a solution

could easily be provided. Also establishment of the International tribunal courts in each

and every country to prosecute those involved in the previous war crimes, after the western

Sudan Darfur armed conflict of 2003 although individuals like Omar al- Bashir were

prosecuted and convicted of criminal charges, there also UN bases in South Sudan for a

peace keeping mission to prevent the future occurrence of such war crimes .

4. Promotion of the international humanitarian law and peace and reconciliation through

international collaborations with other states. The Genocide Convention adopted by the UN

General assembly in 1948 that signified the International community to ‘never again’ after

the atrocities committed during the World War II. The main aims of this convection were

to inform the contracting parties that genocide whether committed in time of peace or in

time of war is a crime under International Law which they undertake to prevent.

COMMAND RESPONSIBILITY

Under international criminal law, command responsibility (also known as superior responsibility)

refers to the principle that allows for commanders to be held criminally liable for crimes that have

been committed by their subordinates, if the commander was in a position to prevent these crimes

20
committed by forces under their effective control and knew or ought to have known that the crime

would be committed.18

International humanitarian law attempts to repress violations of its rules by placing criminal

responsibility on those responsible. These violations however, can also result from a failure to act.

During armed conflict, armed forces are placed under a command that is responsible for the

conduct of subordinates, whereby its superiors are held individually responsible when they fail to

take proper measures to prevent their subordinates from committing serious violations of

International humanitarian law. Hence the concept of command responsibility emerges. It should

be noted that command responsibility is based solely on a command’s failure to act and does not

include cases where they instruct their subordinates to carry out violations of International

humanitarian law. However, in both instances the command is still held criminally liable.19 Under

International humanitarian law, the command’s criminal liability is seen as participation in the

commission of the crime committed by his subordinates.

Therefore, generally, Command responsibility refers to the legal doctrine that holds individuals in

positions of authority accountable for crimes committed by subordinates under their command or

control. It's often applied in the context of war crimes or human rights violations. Commanders

can be held responsible if they failed to prevent or punish subordinates of their unlawful activities.

It therefore permits the prosecution of military commanders for war crimes perpetrated by their

subordinates. This principle is crucial in international humanitarian law, emphasizing the

importance of effective leadership and the duty of commanders to ensure their subordinates adhere

18
https://www.ecchr.eu/en/glossary/command-responsibility/
19
Advisory Service on International Humanitarian Law

21
to legal and ethical standards. Command responsibility aims to discourage leaders from turning a

blind eye to misconduct and promotes a culture of accountability within military or organizational

structures. It has been recognized in various international tribunals and treaties as a means to

address the broader responsibility of those in command positions for the actions of their

subordinates.

Command responsibility for failing to act

At issue is the responsibility of a superior who fails in his duty by doing nothing to prevent or

punish subordinates committing violations of international humanitarian law. In essence, the

commander acquires liability by default or omission.

Perpetrator responsibility for failing to act

The system established in the Geneva Conventions of 1949 for repressing grave breaches targets

persons who have committed or ordered the commission of such a breach. Persons who by failing

to act have allowed a grave breach to happen can also be held criminally liable. Just as it is possible

to kill someone by withholding food or proper care, the grave breach of depriving a prisoner of

war of his right to a fair and regular trial can be and usually is committed simply by failing to take

action. Additional Protocol I of 1977 is more explicit. Article 86(1) specifies that: “The High

Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures

necessary to suppress all other breaches, of the Conventions or of this Protocol which result from

a failure to act when under a duty to do so”.

The grave breaches referred to in Article 85 of Additional Protocol I also include those generally

committed by a failure to act, such as the unjustified delay in repatriating prisoners of war or

civilians.

22
Article 85 of Additional Protocol I of 1977 provides for violations generally committed by a

failure to act. Article 86(1) of the Additional Protocol I of 1977 on the other hand specifies that:

“The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take

measures necessary to suppress all other breaches, of the Conventions or of this Protocol which

result from a failure to act when under a duty to do so”.

Command responsibility emerged during World War II. There were various trials that were held

after the Second World War by the Nuremberg International Military Tribunal in which most of

the decisions arrived at by these trials established the concept of command responsibility. The

main outlines included the idea behind command responsibility, which is the imposing of criminal

responsibility on a superior due to their failure to act when under a duty to do so. It also established

that command responsibility:

i. Involves a superior, i.e. a person having authority over a subordinate

ii. The superior knew or should have known that the crime had been committed or was about

to be committed

iii. The superior had the ability to prevent the criminal conduct but he failed to take all

necessary and reasonable measures within his power to prevent or punish the criminal

conduct.20

Command responsibility as per the Statute of the International Criminal Court (ICC)

This statute draws 2 types of command responsibility;

20
Advisory Service on International Humanitarian Law

23
 a. Responsibility of military commanders

Article 28 of the Statute provides that a military commander is criminally responsible for crimes

within the jurisdiction of the ICC committed by his subordinates where: ·

i. He either knew or should have known that the subordinates were committing or about to

commit such crimes

ii. He failed to take all necessary and reasonable measures within his power to prevent or

repress their commission or to submit the matter to the competent authorities for

investigation and prosecution.21

b. Responsibility of civilian superiors

A hierarchical superior even if he is a non-militant, is criminally responsible for crimes within the

jurisdiction of the ICC committed by subordinates under his authority if;

i. He knew, or consciously disregarded information which clearly indicated, that the

subordinates were committing or about to commit such crimes; ·

ii. The crimes concerned activities that were within his effective responsibility and control;

and · he failed to take all necessary and reasonable measures within his power to prevent

or repress their commission or to submit the matter to the competent authorities for

investigation and prosecution.22

21
The Statute of the International Criminal Court (ICC)
22
Rome Statute of the International Criminal Court (ICC)

24
Responsibility of superiors during a non-international armed conflict

The principle of responsible command within armed groups is one of the terms of application of

Additional Protocol II. A number of countries employing national criminal legislation provide for

holding superiors criminally responsible for all war crimes, regardless of whether the armed

conflict they participated in is international or non -international.

For instance, the Statutes of the International Criminal Tribunal for the former Yugoslavia, the

International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, UNTAET

Regulation No. 2000/15 for East Timor and the ICC all provide that superiors are responsible if

they fail to take action for crimes committed by their subordinates in a non-international armed

conflict. That form of responsibility applies to all the crimes submitted to the jurisdiction of those

tribunals. Article 4 of the Statute of the International Criminal Tribunal for Rwanda expressly

provides for the tribunal’s power to prosecute grave breaches of Article 3 common to the Geneva

Conventions and of Additional Protocol II, which apply to non-international armed conflict. The

case is the same in the Special Court for Sierra Leone whereby the Court has jurisdiction in respect

of other specified serious violations of international humanitarian law committed within the

country.

Article 8.2(c) and (e) of the ICC Statute asserts the ICC’s jurisdiction in respect of serious

violations of Article 3 common to the Geneva Conventions and of other serious violations of the

laws and customs applicable in armed conflicts not of an international character, for which a

hierarchical superior can therefore be held responsible. Rule 153 of the ICRC Customary

International Humanitarian Law Study is applicable to non -international armed conflicts.

25
Principles that were borne from the trials held after World War II that are incorporated in

the Additional Protocol I of 1977

1. A violation committed by a subordinate does not absolve the superior of responsibility

2. The superiors must prevent and, where necessary, suppress and report to competent

authorities grave breaches committed by their subordinates. Only in the event that he failed

in these duties does a commander risk being held criminally responsible for taking no

action.23

3. It is not necessary that the superior have actual knowledge of the crimes; it is just sufficient

that he have constructive knowledge of the crimes in order to be held liable.

4. Failure on the superior’s part to keep himself informed on what is going on may also attract

liability on him.

5. Since this is not a strict liability matter, a superior is only expected to take such steps as

are necessary or reasonable to prevent or suppress the crimes of his subordinates. The

required steps are only those within his power.

Aside from the Additional Protocol I of 1977, under customary law, Rule 153 of the ICRC

Customary International Humanitarian Law Study provides that commanders and other superiors

are criminally responsible for war crimes committed by their subordinates if they knew, or had

reason to know, that the subordinates were about to commit or were committing such crimes and

did not take all necessary and reasonable measures in their power to prevent their commission, or

if such crimes had been committed, to punish the persons responsible.

23
Additional Protocol I of 1977

26
Case law of Ad Hoc International Criminal Tribunals

This case law brought up the issue of the degree of responsibility of a command. How do they

determine to what extent a superior is liable for the violations committed by his subordinate? It

was found that the responsibility of the command is to be measured against the crime itself. This

would mean that his responsibility is to be proportional to the gravity of the crimes.24

On top of that, the case law also established what constitutes a superior. It established that a

superior need not be hierarchical superior de jure of the subordinate provided that the superior is

still in a position to exercise authority over the subordinate de facto. The main test is to see if the

command had the actual powers to control his subordinates by way of an ‘effective control’ test.25

Also concerning what constitutes a superior, it is not necessary that they be a militant. This case

law provides that a superior can be a non-militant provided he still had actual powers over his

subordinates.

Lastly, the case law of Ad Hoc International military tribunal also provides that when determining

whether or not a superior is responsible, it is not necessary to show that there was a direct causal

relationship between the superior’s inaction and the subordinate’s crime.

The Geneva Conventions of 1949

The Geneva Conventions are silent on this point and it is for national legislation to regulate the

matter by express provision or by application of the general rules of criminal law.

24
Advisory Service on International Humanitarian Law
25
Ibid

27
Additional Protocol I of 1977

Principles that came out of the trials held after the Second World War were incorporated in Article

86.2 of Additional Protocol I:

“The fact that a breach of the Conventions or of this Protocol was committed by a subordinate

does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they

knew, or had information which should have enabled them to conclude in the circumstances at the

time, that he was committing or was going to commit such a breach and if they did not take all

feasible measures within their power to prevent or repress the breach.”

Article 87 of Additional Protocol I spells out the duties and obligations of military commanders

with respect to their subordinates. The superiors must prevent and, where necessary, suppress and

report to competent authorities grave breaches committed by their subordinates. Only in the event

that he failed in these duties does a commander risk being held criminally responsible for taking

no action.

A ‘superior’ is understood as someone personally responsible for the acts committed by

subordinates placed under his control.

The issue of how much knowledge the superior should have of the acts or intentions of his

subordinates is difficult to resolve. The knowledge of the superior cannot be presumed, but only

established through circumstantial evidence. Actual knowledge of the crimes by the superior is not

necessarily required, constructive knowledge may be sufficient. It should be borne in mind that

the superior who fails to keep himself informed can also be held liable to be held responsible.

28
It MUST be acknowledged that Command responsibility is not a type of strict liability. The

superior’s duty to act consists in initiating such steps as are necessary or reasonable to prevent or

suppress the crimes of his subordinates. Only those steps that are within his power are required.

ICC rulings based on command responsibility

These cases illustrate the ICC's application of command responsibility as a basis for holding

leaders accountable for the actions of those under their command.

1. **Lubanga Case26 (Democratic Republic of the Congo):** Thomas Lubanga, a militia leader,

was found guilty in 2012 for enlisting and conscripting child soldiers. While Thomas Lubanga's

conviction primarily focused on his direct involvement in recruiting child soldiers, the case also

touched upon the concept of command responsibility. Command responsibility holds leaders

accountable for crimes committed by their subordinates if they knew or should have known about

the crimes and failed to take necessary measures to prevent or punish them.

In Lubanga's case, the ICC prosecutor argued that he exercised effective control over the Union of

Congolese Patriots (UPC) and was responsible for the actions of his militia, including the

recruitment of child soldiers. Although the court did not specifically find Lubanga guilty on

command responsibility grounds, the case highlighted the importance of holding leaders

accountable for crimes committed under their authority.

26
https://www.icc-cpi.int/drc/lubanga

29
2. **Bemba Case27 (Central African Republic):** Jean-Pierre Bemba, a political and military

leader, was convicted in 2016 for war crimes and crimes against humanity, including rape and

murder committed by his troops in the Central African Republic, emphasizing the responsibility

of a commander for actions of subordinates. Bemba's case was notable for being the first at the

ICC to focus on command responsibility, holding him accountable for crimes committed by his

forces in a neighboring country. However, in 2018, the ICC Appeals Chamber overturned Bemba's

conviction, citing errors in the trial, particularly in how the chamber defined the scope of his

command responsibility.

3. **Katanga Case28 (Democratic Republic of the Congo):** In the case against Germain Katanga,

a militia leader, the ICC focused on command responsibility regarding the 2003 attack on the

village of Bogoro, where war crimes were committed. Germain Katanga's case was notable for its

focus on individual criminal responsibility and the application of the principle of command

responsibility. The ICC emphasized that commanders are accountable not only for directly

ordering crimes but also for their contribution to the planning, preparation, or execution of such

crimes by their subordinates. The ICC found him guilty in 2014 for aiding and abetting crimes

committed by his forces, although he was acquitted of some charges, including sexual slavery. The

judgment underscored the need to establish a direct link between the actions of the accused and

the crimes committed by their forces. It also highlighted the importance of assessing the level of

27
https://brill.com/downloadpdf/view/journals/icla/20/2/article-p163_163.pdf
28
https://www.icc-cpi.int/sites/default/files/CaseInformationSheets/KatangaEng.pdf

http://kenyalaw.org/kenyalawblog/germain-katanga-iccinternational-criminal-court-mode-of-

liability-can-be-recharacterized-to-prove-accesoryship/

30
control and influence a commander has over their troops and the extent to which they knew or

should have known about the crimes being perpetrated. The court determined that Katanga, as the

leader of the Patriotic Resistance Force in Ituri (FRPI), had effective control over his forces and

contributed to the commission of crimes.

4. **Ntaganda Case29 (Democratic Republic of the Congo):** Bosco Ntaganda, a militia leader,

was convicted in 2019 for crimes including rape, sexual slavery, and using child soldiers. The ICC

emphasized his command responsibility for the actions of his forces. Bosco Ntaganda's case was

notable not only for the breadth of charges but also for shedding light on intricate dynamics within

armed groups. The prosecution argued that Ntaganda played a central role in planning and

executing attacks on civilians, leading to widespread displacement and suffering. The verdict

reinforced the ICC's commitment to addressing sexual and gender-based crimes as a form of

warfare, as Ntaganda was found guilty of using rape and sexual slavery as tools of war. The case

also underscored the responsibility of military commanders for the actions of their forces,

contributing to the jurisprudence on command responsibility within the realm of international

criminal law.

29
https://www.hrw.org/news/2019/07/02/qa-bosco-ntaganda-dr-congo-and-icc

https://casebook.icrc.org/case-study/icc-prosecutor-v-bosco-ntaganda

Case Information Sheet - The Prosecutor v. Bosco Ntaganda https://www.icc-

cpi.int/sites/default/files/CaseInformationSheets/NtagandaEng.pdf

31
5. **Ongwen Case30 (Uganda):** Dominic Ongwen, a commander in the Lord's Resistance Army

(LRA), was found guilty in 2021 for crimes against humanity and war crimes. The judgment

highlighted Ongwen's responsibility for crimes committed by the LRA under his command.

Dominic Ongwen, a former commander of the Lord's Resistance Army (LRA), faced charges at

the International Criminal Court (ICC) that included crimes against humanity and war crimes. His

case involved issues of command responsibility, examining whether he could be held accountable

for the actions of his subordinates.

Ongwen argued that he was a victim himself, having been abducted by the LRA as a child. The

court considered factors such as his role within the LRA, his ability to control the actions of his

forces, and whether he took reasonable measures to prevent or punish crimes. The judgment,

delivered in 2021, found Ongwen guilty on numerous counts, but his status as both perpetrator and

victim raised complex legal and ethical questions.

6. **Nahimana et al. Case31 (Rwanda):** In the Media case, Ferdinand Nahimana, Jean-Bosco

Barayagwiza, and Hassan Ngeze were found guilty of genocide and crimes against humanity for

30
CASE ANALYSIS: PROSECUTOR V. DOMINIC ONGWEN

https://articles.manupatra.com/article-details/CASE-ANALYSIS-PROSECUTOR-V-DOMINIC-

ONGWEN

https://casebook.icrc.org/case-study/icc-confirmation-charges-against-lra-leader

https://www.humanrightspulse.com/mastercontentblog/the-prosecutor-v-dominic-ongwen-a-

judgment-of-many-firsts
31
http://www.haguejusticeportal.net/Docs/Commentaries%20PDF/Kagan_Nahimana_EN.pdf

32
their roles in inciting violence through media during the Rwandan genocide. The case explored

command responsibility for their influential positions. The case involves Ferdinand Nahimana,

who was a key figure in the International Criminal Tribunal for Rwanda (ICTR) case known as

the Media Trial. Nahimana, along with Jean-Bosco Barayagwiza and Hassan Ngeze, faced charges

related to their roles in promoting and inciting genocide through media outlets during the 1994

Rwandan genocide. In the Nahimana et al case, the concept of command responsibility was

explored, as they were accused not only of direct involvement in the incitement to genocide but

also of having control and influence over media outlets that played a significant role in spreading

hate speech and promoting violence.

The case delved into the power of media in fueling ethnic tensions and inciting violence. The

tribunal considered their positions as leaders and influencers in the media landscape during the

genocide, examining the extent to which they exercised control over their outlets and the impact

of their messages on the commission of crimes.The Nahimana et al case contributed to establishing

precedents regarding individual criminal responsibility for incitement through media, recognizing

that those in positions of authority can be held accountable for the consequences of their actions.

It underscored the significance of addressing not only direct perpetrators but also those who use

media as a tool to propagate hatred and contribute to the commission of atrocities. The tribunal

found them guilty of genocide, conspiracy to commit genocide, and direct and public incitement

to commit genocide.

ICD - Nahimana et al. - Asser Institute - International Crimes Database

https://www.internationalcrimesdatabase.org/Case/152/Nahimana-et-al/

33
7. **Kenyatta Case32 (Kenya):** Although the case against Kenyan President Uhuru Kenyatta was

dropped, it highlighted challenges in proving command responsibility at the highest levels of

government in the context of post-election violence in Kenya in 2007-2008. The case involving

Uhuru Kenyatta was before the International Criminal Court (ICC) and focused on allegations of

crimes against humanity related to the post-election violence in Kenya in 2007-2008. Kenyatta,

who later became the President of Kenya, faced charges of orchestrating violence that led to

widespread displacement, injuries, and deaths. While the charges against Kenyatta included crimes

against humanity, the concept of command responsibility played a limited role in this particular

case. The prosecution faced challenges in establishing a direct link between Kenyatta and the

crimes, and eventually, in 2014, the ICC prosecutor dropped the charges citing a lack of

cooperation from the Kenyan government and insufficient evidence.

8. **Gbagbo and Blé Goudé Case33 (Ivory Coast):** Laurent Gbagbo, former President of Ivory

Coast, and Charles Blé Goudé, a political leader, were acquitted in 2019, but the case raised issues

related to command responsibility for crimes committed during the post-election violence in 2010-

2011. Laurent Gbagbo and Charles Blé Goudé were on trial at the International Criminal Court

(ICC) for their alleged roles in the post-election violence in Côte d'Ivoire in 2010-2011. The

charges included crimes against humanity, such as murder, rape, and persecution.

32
https://www.icc-cpi.int/sites/default/files/CaseInformationSheets/KenyattaEng.pdf
33
The Prosecutor v. Gbagbo and Blé Goudé https://www.aba-icc.org/cases/case/the-prosecutor-v-

gbagbo-and-ble-goude/

https://www.icc-cpi.int/sites/default/files/CaseInformationSheets/gbagbo-goudeEng.pdf

34
In their case, the concept of command responsibility was considered. The prosecution argued that

Gbagbo, as the former President of Côte d'Ivoire, and Blé Goudé, as a close ally and youth leader,

exercised control and authority over the security forces and militias implicated in the crimes. The

trial underscored the challenges of establishing command responsibility at the highest levels and

the need for substantial evidence to hold individuals accountable for crimes committed by

subordinates.

9. **Al-Mahdi Case (Mali):** Ahmad Al Faqi Al-Mahdi was convicted in 2016 for the destruction

of cultural heritage sites in Timbuktu. This case also touched upon command responsibility,

holding Al-Mahdi accountable for the actions of those under his authority.

Issues

One of the main issues under command responsibility is that there are not clearly specified limits

when it comes to criminal responsibility for failing to act under international criminal law. Under

International humanitarian law, failure to act on the part of a superior does not expressly qualify

as a grave breach. This becomes problematic because states are only required to repress grave

breaches.

DEFENCES

The goal of civil defence is to lessen the harm, losses, and suffering that civilians endure as a result

of the rapid advancement of military tactics and equipment, as reflected in the inception of

international humanitarian law. This goal is also commonly represented in the safety measures for

civilians in the case of an assault, which are outlined in the 1949 Geneva Conventions First

Protocol Additional of 1977. The right to continue operating under foreign occupation is already

35
granted to civil protection organizations, their staff, and National Red Cross and Red Crescent

Societies under the Fourth Geneva Convention for the protection of civilians during times of

conflict. Under AP I, civil defence organisations are protected in all circumstances involving

international armed conflict. It provides a unique symbol to identify them and ensures their safety

while they perform civil defence duties. The regulations governing civil defence should be

followed during non-international armed conflicts as part of the general protection provided to the

civilian population against the risks arising from military operations, even though the 1977 Second

Protocol Additional to the Geneva Conventions of 1949 makes no explicit mention of it (Art.

13(1)). One crucial element in safeguarding the civilian populace is civic protection.34

1. SELF DEFENCE

It describes the use of force to defend oneself, others, or a legally protected interest from an

assault or imminent danger of attack. According to international law, a State's natural right to

employ force in retaliation for an armed attack is known as self-defense. One of the exceptions

to the UN Charter's article 2(4) and customary international law's ban on the use of force is

self-defense. Scholars continue to debate whether an armed attack that justifies self-defense

should come from another state (as opposed to an armed group) and if the attack must actually

occur in order for self-defense to be legitimately invoked. The concept of self-defence and

defence of others is also used in criminal law as a defence to justify a necessary and

proportionate use of force against an unlawful attack. Such conduct by civilians does not

constitute direct participation in hostilities. 35

34
Icrc.org
35
Casebook.icrc.org

36
 Article 51 of the UN Charter allows states their “inherent” right of self-defence, but only, it

seems, until the Security Council steps in. The article aims to find balance between collective

security and individual (or collective) self-defence. Self-defence may be engaged in “if an

armed attack occurs”. Yet one need not await until an armed attack has occurred before

defending themselves. Indeed, small states could be completely wiped out by a single armed

attack.36

Instead, one may point to the customary right of self-defence which would be broader than that

formulated under article 51 UN. The reference by article 51 to an inherent right of self-defense

is famously linked to the Caroline incident over the use of anticipatory or pre-emptive self-

defense to avert an imminent armed attack. In 1937, a Canadian rebel force, partly made up of

US nationals and assisted by an American Ship the Caroline was involved in attacks on British

Ships that passed near Canadian shores. The Caroline was used to deliver supplies to Canadians

rebelling against British domination. In retaliation, it was attacked while lying in harbor,

seized, set to fire and pushed over the Niagara Falls. The US Secretary of State criticizing the

British action wrote: “It will be for His Majesty’s Government to show necessity of self-

defense, instant, overwhelming, leaving no choice for other means and no moment for

deliberation. “The threat, in other words, must be imminent. Apart from the customary

international law of self-defense’s requirement of imminence, for this defense to be lawful two

conditions must be met: necessity and proportionality. Self-defense should not be punitive. It

must repel an attack, not pursue the attacker. Self-defense may justify temporary military

occupation, but cannot justify long-term occupation, let alone annexation.

36
UNCharter

37
 There are two lines of reading of Article 51 (when attacks can actually be attributed to a state).

The narrow reading stems from the ICJ in the Nicaragua case. Confronted with a question of

whether the acts of armed groups within Nicaragua could be attributed to the USA, the court

formulated the relevant standard as one of “effective control.” If it could be proved that the

activities of so-called Contras, a rebel group supported by the USA, were“effectively

controlled” by the USA, then the USA would incur responsibility and Nicaragua would be

justified in directing its self-defense against the USA.37

The Court upheld this strict approach in the Armed Activities on the Territory of the Congo

(DRC v Uganda) [2005] ICJ Reports 168. Uganda argued that it had occupied towns and

airports in the Congo not for the purpose of overthrowing the Congolese Government, but for

its own perceived security needs. However, rejecting that argument, the court held that Uganda

in doing so had violated the principles of non-intervention and the non-use of force expressed

in article 2(4) of the UN Charter. Although it did not find that the activities of aggression by

the rebel group could be attributed to Uganda, it concluded that providing training and military

support to such a group may violate certain international obligations, such as the obligation to

refrain from organizing or instigating civil strife or the overthrow of regimes. These obligations

are specified under customary international law.

By contrast in the Tadic case [Prosecutor v Dusko Tadic] ICTY Judgment 1999, a different

tribunal posited that “effective control” was too strict a test and that a looser test of “overall

control” would be more appropriate. It conveyed that states should be held responsible for

groups acting on behalf of and in connivance with a state, even if they are not acting on a direct

37
En.wikipedia.org

38
 order. This is because the law on state responsibility holds states responsible even for the ultra

vires acts of their officials and organs. 38

2. COUNTER MEASURES

Countermeasures are devices, signals, and techniques deployed to impair or eliminate the

operational effectiveness of an attack by an enemy force. Those enemy actions may be

immediate threats and also include use of electronic warfare via intrusive radio-frequency (RF)

or infrared signals, jamming technologies, and more. Advanced countermeasures range from

physical chaff, flare, and decoy expendables to acoustic, infrared, and laser countermeasures.

Electronic countermeasures (ECM) can also jam, modify, and/or deceive opponents' attacks
39
using RF communications, and radar countermeasures systems. In international law,

countermeasures are measures taken by a State in response to the internationally wrongful act

of another State and aimed at inducing the latter State to comply with its legal obligations. As

explained by the ICJ in the Gabcíkovo-Nagymaros Project case, countermeasures might justify

otherwise unlawful conduct “taken in response to a previous international wrongful act of

another State and directed against that State.” This is also reflected in Article 22 of the ILC

Articles on State Responsibility, which stipulates that “the wrongfulness of an act of a State

not in conformity with an international obligation towards another State is precluded if and to

the extent that the act constitutes a countermeasure taken against the latter State. 40

38
International criminal tribunal
39
Baesystems.com
40
Jusmundi.com

39
 The conditions of lawful countermeasures under customary international law are codified in

the ILC Articles on State Responsibility. In particular, Article 49 provides: “An injured State

may only take countermeasures against a State which is responsible for an internationally

wrongful act in order to induce that State to comply with its obligations. 2. Countermeasures

are limited to the non-performance for the time being of international obligations of the State

taking the measures towards the responsible State3. Countermeasures shall, as far as possible,

be taken in such a way as to permit the resumption of performance of the obligations in

question.” In addition, Article 51 adds that countermeasures must be proportional. Finally,

Article 50 provides that countermeasures shall not affect various legal obligations such as

obligations concerning the use of force, the protection of human rights, and obligations under

humanitarian law. 41

In Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. The

United Mexican States case, the tribunal had to decide whether a tax enacted by Mexico “in

order to induce” the United States to comply with its NAFTA obligations can be considered a

countermeasure precluding the wrongfulness of Mexico’s otherwise wrongful conduct. The

tribunal held that although the defense of countermeasures is in principle applicable in

international investment treaty arbitration, Mexico’s tax was not a legitimate countermeasure.

In contrast, in the Corn Products International Inc v. Mexico case, which concerned similar

facts, the tribunal held the investors enjoy substantive rights, which are separate and distinct

from those of their State of nationality, and therefore the host States cannot deprive the

investors of their rights even in order to induce their state of nationality to comply with its

41
International law commission

40
 international legal obligations. This conclusion was also reached by the tribunal in the case of

Cargill v. Mexico42

These 3 conditions are confirmed in the more recent Air Services Agreement case (France v

USA) (1978) International Law Reports 303 which was the first to use the term “counter

measures” it arose out of a dispute between France and the USA. The parties concluded an air

services agreement in 1946 and supplemented it in 1960, providing inter alia for landing and

disembarking rights of certain designated carriers. When Pan American Airliners started

behaving in a manner the French felt was in contravention with the agreement (changing to a

smaller plane in London instead of flying bigger planes directly to Paris), they prohibited

PanAM passengers from disembarking, effectively banning PanAm from flying to Paris. The

USA retaliated by preventing certain French flights from landing in the USA. One issue during

arbitration was whether the US retaliation response had been lawful.

The tribunal confirmed a general right to take counter measures in a case of violation by

another state. It found that the first condition of the lawfulness of counter measures was that

they had to be proportional. This was a matter of appreciation. It does not suffice to compare

one sides financial loses to these of the other side. Instead one should also take into account

the position of the principles involved. The measures taken by the US “did not appear to be

clearly disproportionate when compared with those taken by France.”

However, while the tribunal upheld the value of resorting to negotiations and consultations,

nonetheless it found that such obligations do not prohibit the resort to counter measures, and

argued that the proper resort to counter measures can actually stimulate negotiations. The US

42
S.n7

41
imposed its counter measures while the compromise to resort to arbitration was already under

negotiation (but not yet concluded). The tribunal found that the parties should take care not to

escalate the dispute: “counter measures therefore should be a wager on the wisdom, not the

weakness of the other party.”

The requirements have been codified in Article 51 and 52 of the Draft Articles on State

Responsibility (DASR). Article 51 gives pride of place to proportionality, whereas Article 52

adds the requirement of an unsatisfied demand combined with the required offer of

negotiations.

Article 22 adds that counter measures are only allowed against a state responsible for an

internationally wrongful act. An exception may be found in article 54 (as read with 48)

concerning treaties protecting a collective interest or erga omnes obligation. In such cases other

treaty partners or indeed any state, can invoke the wrong doing state’s responsibility, possibly

including counter measures.

3. CONSENT

In the past decade, numerous outside states, coalitions, or regional organizations have launched

military operations in reliance on the (real or alleged) request, or invitation’, of one of the

parties embroiled in military strife. The most prominent among these are as follows: The

French operation ‘Serval’ in Mali of 2013 was a response to a ‘request for assistance from the

Interim President of the Republic of Mali’. In 2014, Russia intervened in Crimea (Ukraine) at

42
 the request of a pro-Russian Ukrainian president, which resulted in the annexation of the

peninsula. 43

As for consent as a circumstance precluding wrongfulness, the international humanitarian law

treaties themselves stipulate that no State may absolve itself or another State of any

responsibility incurred in respect of grave breaches. This confirms that a State cannot consent

to a violation of the rules of international humanitarian law that protect victims’ rights.

International Court of Justice (ICJ) held, in its Nicaragua judgment of 1986, that intervention

is ‘allowable at the request of the government of a State’ but not upon request by the armed

opposition. 44

There is a rough agreement that consent simultaneously forms the legal basis and defines the

legal limits of the exception from the prohibitions on the use of force and on intervention. In

its 2005 judgment on Armed Activities on the Territory of the Congo, the ICJ explained

consent as ‘validating that presence [of troops] in law. The ICJ also stated that such consent is

limited in time, ‘geographic location and objectives.

An intervening state that wishes to use force against an organized non-state actor in another

state’s territory must comply with the prohibition on armed interference. Article 2(4) prohibits

states from threatening or using force “against the territorial integrity or political independence
45
of any state, or in any other manner inconsistent with the Purposes of the United Nations.

43
Apnews.com
44
Nicaragua v United States of America
45
UN Charter

43
 The prohibition does not apply, however, if the host state consents to use of force on its

territory, presuming that the appropriate state authority grants such consent and the intervening

state operates within the scope of that consent. Voluntary consent renders a state’s use of force

lawful under jus ad bellum, the law governing when one state may use force in another state’s

territory. 46

Under international law, a state may generally presume that another state’s consent is

legitimately granted under the consenting state’s domestic law. In the treaty context, for

instance, unless the error is glaring and highly significant, a state cannot argue that an

agreement is invalid either because the approval process was flawed under domestic law or

because the substantive content of the agreement is inconsistent with domestic law. 47

Hence, in most circumstances, a state may lawfully act on consent from another state, even if

it was unlawfully given as a matter of the consenting state’s domestic law. Henriksen argues

that intervening states are not accountable for actions taken pursuant to host state consent, even

if such action “would have been unlawful if carried out by the consenting state. 48

4. FORCE MAJEURE

Whether proclaimed by a State or an individual, a force majeure describes unexpected and

unavoidable circumstances that prevent that government or person from keeping or

implementing a written commitment. Force majeure is an outside event that is unpredictable

46
Critical Analysis on State responsibility
47
Vienna Convention
48
A Henriksen, Jus Ad Bellum and American Targeted Use of Force to Fight Terrorism Around

the World, 19 J. CONFLICT & SECURITY L. 211, 220 (2014)

44
and beyond the control of those invoking it. This notion may be applied to commitments

undertaken by individuals.

Force majeure is codified in Article 23 of ARS, which provides;

1. The wrongfulness of an act of a State not in conformity with an international obligation of

that State is precluded if the act is due to force majeure,that is the occurrence of an irresistible

force or an unforeseen event, beyond the control of the State, making it materially impossible

in the circumstances to perform the obligation.

2. Paragraph 1 does not apply if:

i. The situation of force majeure is due, either alone or in combination with other factors,

to the conduct of the State invoking it;

ii. The State has assumed the risk of that situation occurring.

The force majeure act must be beyond the control of the state. This does not mean that it must

be absolutely external to the state invoking the defense. As stated in the comprehensive UN

Secretariat Study, force majeure can be applied even in cases when the activities or omissions

giving rise to it stem from the state itself, as long as they are not attributed to it as a result of

its willful behavior.

When a conflict situation passes the threshold of international or internal armed conflict

required for application of international humanitarian law, exceptions to state responsibility

45
 which exist in primary rules of a specialized regime governing the conduct of states in armed

conflict remove the need for general defense under the law of state responsibility. 49

Thus historically, destruction of alien property in the course of armed conflict, battles or during

bombardment has often been categorized as the ‘legitimate act of war’, or measures ‘compelled

by the imperious necessity of war’, thus not giving rise to state responsibility. The damages

resulting from the seizure or destruction prompted by imperious military necessity were

considered to be ‘walruses’, i.e., damages incident to combat action, and as such, no

compensation could be demanded.

Cases involving genuine military operations and consequences of measures that a state takes

during war should be distinguished from those due to the general situation of war itself. The

distinction was highlighted in the Agache Case emerging from World War II, where the

French/Italian Conciliation Commission explained in its decision that the fact that transported

goods were ‘spoiled and reduced in value [as] a result of the general disruption caused by the

war in rail transport between Italy and France’ and not a result of a measure that state took

during the war. The damage could not be attributed to the state, as it was caused by a general

situation of war rather than a state’s direct action or omission.50

5. NECESSITY AS A DEFENCE

Under the law of state responsibility, the state of necessity (not to be confused with the concept

of military necessity is a circumstance precluding the wrongfulness of an otherwise

internationally wrongful act. The state of necessity can be invoked under precise conditions,

49
Gas Transmission Company v. The Argentine Republic
50
The Establishment Agache Case (France/Italy) (1955)

46
laid down in Article 25 of the International Law Commission’s Articles on State

Responsibility. It traditionally indicates the existence of a situation in which the sole means by

which a State can safeguard an essential interest from grave and imminent peril is by violating

international law. IHL, as a domain of international law that is intended to apply to emergency

situations, contains no room for necessity as a circumstance precluding wrongfulness of a

particular course of conduct, except where explicitly stated otherwise in some of its rules.

In a similar manner, in the realm of international criminal law, the defence of necessity (closely

connected to that of duress) may be invoked under specific circumstances by an individual as

a ground for excluding individual criminal responsibility for a crime.

The defense of necessity may apply when an individual commits a criminal act during an

emergency situation in order to prevent a greater harm from happening. In such circumstances,

our legal system typically excuses the individual’s criminal act because it was justified, or

finds that no criminal act has occurred. Although necessity may seem like a defense that would

be commonly invoked by defendants seeking to avoid criminal charges, its application is

limited by several important requirements:

 The defendant must reasonably have believed that there was an actual and specific

threat that required immediate action

 The defendant must have had no realistic alternative to completing the criminal act

 The harm caused by the criminal act must not be greater than the harm avoided

 The defendant did not himself contribute to or cause the threat

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Only if all of these requirements are met, will the defense of necessity be applicable. It is also

important to note that in some jurisdictions, necessity is never a defense to the killing of another

individual, no matter what threat they may present.

 Reasonable Belief

Under the defense of necessity, an individual must reasonably believe, first and foremost, that

there is an imminent and actual threat that requires immediate action. Thus, for instance, a

school bus driver may be driving a bus of school-aged children when he loses control of his

brakes as he is approaching a steep turn on a mountain road. He is faced with an actual and

immediate threat that the bus may go out of control and drive off the road, risking the lives of

countless children on the bus.

Like other crimes, most states require that this threat would be reasonably apparent to the

average individual and is not a threat that the defendant experienced only subjectively. Here,

a reasonable person would certainly agree that an out of control bus with children on it is an

actual threat to safety.

 An Objective Standard

The belief in the imminent, actual, and greater threat must be reasonable to the average

individual, not only the individual who committed the act. Using the example above, if the bus

driver instead was riding his beloved motorcycle and believed that his bike was in imminent

danger of harm because of the mountain’s terrain, he would not be able to use the necessity

defense. No reasonable person would believe that the threat to the motorcycle was severe

enough to justify a criminal act.

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 No Realistic Alternative

Because the defense of necessity is essentially a justification for the criminal act, it is

imperative that the defendant had no other realistic options available to him at the time the

criminal act was committed. If he did, his criminal actions would not be justified. This does

not mean, however, that no alternative whatsoever must exist. Generally, the individual will

always have the option to simply let the greater harm occur and refrain from acting criminally,

but courts have determined that this is not a “realistic” option.

In the example, for instance, if the bus driver had access to an emergency braking device that

was designed to stop the bus when the regular brakes failed, he would not be justified in

committing a criminal act to prevent collision because he had a realistic alternative available

to him.

 No Greater Harm

When an individual is evaluating whether it is necessary to undertake a criminal act in order

to avoid a more serious problem from arising or occurring, the individual must be certain that

no greater harm will arise from his or her criminal act than from the situation that would be

avoided.

The necessity defense is sometimes called the lesser of two evils defense because it can only

be applied when the defendant was certain that their act would result in no greater harm than

the situation avoided.

For instance, if, in order to avoid driving off the mountain road and plunging down the steep

incline, the bus driver elects to drive the bus into a barn in order to stop the bus, he must be

certain that no greater harm will come from this choice. Because it is a barn and perhaps

49
appears empty to him, his criminal act of destroying the barn and any property inside will likely

be considered less harmful than the lives lost if the bus careens over the road. However, if the

bus drivers only alternative was to drive the bus into an area crowded with other people, he

might, in fact, cause more harm through this alternative than would be prevented.

 No Involvement in the Threat

Finally, any defendant claiming the defense of necessity cannot have contributed to or caused

the threat that they were later seeking to avoid by committing the criminal act. Thus, if the bus

driver had been advised by his mechanic that the brakes on his bus were failing, but decided

not to have them replaced, he could have difficulty claiming the defense of necessity because

his failure to act responsibly contributed to the threat he faced.

6. DEFENSE OF EXTREME EMOTIONAL DISTRESSS

In April 2006, Brenda White was accused of criminal mischief and the attempted murder of

her husband, Jon White. During her trial, Ms. White requested that the jury members be

instructed about the extreme-emotional-distress defense. The district court denied her motion.

The court of appeals concluded that there was no contemporaneous triggering event in her case

to warrant the instruction to the jury. The Supreme Court of Utah in State v. White, 251 P.3d

820 (Utah 2011), ruled that there is no need for a contemporaneous triggering event and that

this defense should be evaluated from the perspective of a reasonable person under the existing

circumstances.

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Discussion

The extreme emotional distress defense is in use in various states, often serving as an

affirmative defense in the case of murder and attempted murder, allowing for possible

mitigation and reduction in the severity of the crime charged. If used successfully, this defense

may diminish charges of murder or attempted murder to manslaughter or attempted

manslaughter. This defense must be proved by preponderance of the evidence. The Utah

Supreme Court in this decision makes clear that consideration for the behavior and its

relationship to extreme emotional distress should be analyzed from the standpoint of an

ordinary person in an analogous situation, under circumstances in which the actor reasonably

believes herself to be. The law necessitates that the person be exposed to extremely unusual

and overwhelming stress that caused the person to lose self-control, but made clear that the

triggering event need not be “contemporaneous.” The court noted, “A close temporal tie

between provocation and the criminal act was necessary under the ‘heat of passion’

formulation because manslaughter was not available if there was time for the defendant to

‘cool off.’ No such requirement exists to assert the extreme emotional distress defense”

This decision by the court illustrates the need to evaluate the subjective and idiosyncratic

emotional reactions of a defendant, but it also calls for objective analysis regarding the severity

of triggering stressors and how a reasonable person might respond. Cogent medicolegal

formulations and education for triers of fact necessitate attention to both elements. A genuine

subjective emotional reaction involving extreme distress must pass some objective analysis

regarding the degree of precipitating adversity for a viable affirmative defense to exist. Novel

or unusual stressors causing extreme behavior will necessitate nuanced analysis, to facilitate

legitimate defense opportunities and protect against abuses of this affirmative defense option.

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 7. DURESS

While duress is not a justification for committing a crime, it can serve as an excuse when a

defendant committed a crime because they were facing the threat or use of physical force. The

defense must establish that a reasonable person in the defendant’s position also would have

committed the crime. It resembles self-defense in some respects, since it arises from a threat

of imminent death or serious bodily injury, and it requires that the defendant had a reasonable

fear that the threat would be carried out. In addition, duress requires the defendant to show that

they had no alternative to committing the crime.

Duress is generally not a defense to murder, but a few states may reduce the crime to

manslaughter.

Duress often is not an appropriate defense for murder or other serious crimes. States generally

have found that killing someone else to avoid being killed is not a sufficient excuse for homicide.

A defendant also cannot present a duress defense if they were responsible for getting into the

situation that resulted in the threat of death or serious injury. Like self-defense, duress is an

affirmative defense, so the defendant must present evidence of each element. The judge will need

to decide whether a jury instruction on duress is appropriate. The prosecution may not need to

disprove duress beyond a reasonable doubt if the defense produces sufficient evidence to raise it.

The court may simply make sure that the defendant’s evidence is sufficient for the instruction and

allow the jury to decide which side has presented stronger evidence.

The Difference between Duress and Necessity

Many people confuse the defense of duress with the defense of necessity. Both of them are based

on a defendant being forced to commit a crime to avoid serious harm. The main response to either

defense is that the defendant had another option to avert the harm. Sometimes courts combine

52
these defenses, but technically they are separate. The main difference is that duress means that the

defendant committed a crime because someone directly forced them to do it. Necessity involves a

choice between two bad alternatives that could not be avoided, which arose from the circumstances

rather than the actions of a specific person.

CONCLUSION

In conclusion, a war crime is an act that violates International Humanitarian Laws. The world has

seen war crimes committed during warfare in different periods and states have, over the years

opted to regulate the force that is used during warfare as well as the fatality of the weapons used

by introducing certain international laws such as the Rome statute which establishes the

International Criminal Courts (ICC). Furthermore, several attempts have been made to prosecute

those who committed war crimes starting with after World War I and World War II. However,

defences have been established in order to lessen the harm, losses, and suffering that civilians

endure as a result of the rapid advancement of military tactics and equipment, as reflected in the

inception of international humanitarian law Further, command responsibility is the principle that

allows for commanders to be held criminally liable for crimes that have been committed by their

subordinates, if the commander was in a position to prevent these crimes committed by forces

under their effective control and knew or ought to have known that the crime would be committed.

(13191 WORDS)

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Table of cases

Agache case (1995)

Delalic case (2001)

Gas Transmission Company v. The Argentine Republic

Nicaragua v United States of America

Tadic case of 1995

The Prosecutor v. Bosco Ntaganda

The Prosecutor v Dominic Ongwen

The Prosecutor v. Gbagbo and Blé Goudé

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List of Statutes

Additional Protocal I of 1977

Advisory Service on International Humanitarian Law

Rome Statute of the International Criminal Court 1998

Statute of the International Criminal Tribunal for Rwanda

Statute of the Interntional Criminal Tribunal for Yugoslavia

The Lieber Code 1863

The Hague Regulations

UN Charter

Uniform Code of the Military Justice

Vienna Convention

War Crimes Act of 1996

Bibliography

A Henriksen, Jus Ad Bellum and American Targeted Use of Force to Fight Terrorism Around the

World, 19 J. CONFLICT & SECURITY L. 211, 220 (2014)

Anthony Lopez, The International Handbook on Collective Violence: Current Issues and

Perspectives, The Evolution of Warfare (2019) Routledge

55
Cambridge Advanced Learner’s Dictionary & Thesaurus, CUP

https://dictionary.cambridge.org/dictionary/english/warfare

Cassese, Antonio (2013). Cassese's International Criminal Law (3rd Ed.). Oxford University Press.

pp. 63–66. ISBN 978-0-19-969492-1. Archived from the original on April 29, 2016. Retrieved

October 5, 2015.

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